Findings Of Fact Respondent Holt is a registered real estate salesman having been issued license number 0334695. She has not been issued a real estate broker's license. Count II of the Amended Administrative Complaint concerns a failure by the original Respondents to timely place an earnest money deposit in escrow. These funds came into the hands of Donna Duffy, the broker, and Best Sellers Group, Inc., the brokerage firm, on February 14, 1981, but were not deposited until February 23, 1981. Former Respondent Duffy and Respondent Holt testified on the question of who was responsible for making the deposit. These individuals have had a falling out and their testimony was conflicting as well as self-serving. Other testimony supporting this charge was inconclusive. Counts II and III concern a property lease which Respondent arranged for out of state property owners after she left the Atkins, Green, Stauffer and Clark brokerage. The lease arose out of an exclusive right of sale listing with this firm. However, the brokerage was not interested in handling the lease and Respondent undertook this transaction as a favor to the property owners. Holt located a potential lessee in October, 1980. She then forwarded a copy of the lease agreement to the owners along with a bill for her expenses and her personal check for $495. This amount equaled the first month's rent and security deposit which she had collected from the lessee. Thereafter, the property owners negotiated Holt's check, but it was dishonored by the bank. Subsequently, the property owners were deprived of a further $395 in rent collected by Holt. In August, 1981, Holt made restitution in the amount of $890. In mitigation, Holt stated that her estranged husband had withdrawn the original funds intended to cover the returned check. She also had experienced other expenses of divorce and family problems which led her to spend funds she subsequently collected. In further mitigation, Holt pointed out that she did not seek a commission for obtaining the lease, nor did she charge a monthly fee as is customary in such matters when handled through a brokerage.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent Mary Ann Holt guilty as charged in Counts II through VI of the Amended Administrative Complaint, and suspending her real estate salesman's license for a period of three years. DONE and ENTERED this 11th day of January, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1983.
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
The Issue Whether the Respondent is guilty of the violations alleged in the Administrative Complaint filed by the Petitioner and, if so, whether Respondent's real estate license should be suspended, revoked, or otherwise disciplined.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner is a state government licensing and regulatory agency with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes; Chapters 120, 455, and 475, Florida Statutes; and the rules adopted pursuant thereto. At all times pertinent to this proceeding, Respondent Jared A. White T/A Jerry White Realty was a licensed real estate broker, having been issued license number 0187087 pursuant to Chapter 475, Florida Statutes. The last license issued to Respondent was as a broker with an address of 231 Skiff Pt. 7, Clearwater, Florida 34630. TITLE TO THE PROPERTY The matters at issue began with Respondent's retention as a real estate broker to bid at a foreclosure auction for a beachfront house and lot at 235 Howard Drive in Belleair Beach, Pinellas County, Florida. Respondent was hired to submit the bid on behalf of Dr. Moshe Kedan and/or his wife, Ella Kedan. Prior to the auction on August 17, 1995, Respondent had no contact with the Kedans. Kathy MacKinnon of Viewpoint International Realty in Clearwater was Respondent’s point of contact with the Kedans. It was Ms. MacKinnon who obtained Respondent's services to bid on behalf of the Kedans, and Ms. MacKinnon who negotiated with Dr. Kedan as to the financial arrangements for both the bid and any ensuing commissions for Respondent. Neither Ms. MacKinnon nor Dr. Kedan was called as a witness in this case. Respondent attended the foreclosure auction and tendered the winning bid on the property. Respondent bid in his own name. Respondent testified that he had bid at several similar sales in the past, and his practice was to bid in the name of the person who would hold title to the property. Respondent did not follow his usual practice here because Ms. MacKinnon failed to instruct him as to whether the property would be titled in the name of Dr. Kedan, Mrs. Kedan, or one of their corporations. Ms. MacKinnon told Respondent she would know on August 18 how the property was to be titled. Respondent's testimony regarding the initial titling of the property is supported by a handwritten note faxed by Ms. MacKinnon to Dr. Kedan on August 17, shortly after the auction. Ms. MacKinnon's note provides instructions regarding payment of the purchase price, indicating that the money must be submitted to the Clerk of the Court no later than 10:30 a.m. on the morning of August 18. The note specifically asks, "Also, whose name do you want the house in?" Respondent testified that on August 18, he went to Atlanta on business, with the understanding that Ms. MacKinnon would handle the payments to the Clerk of the Court and the titling of the property on that date. This testimony is consistent with the handwritten note in which Ms. MacKinnon indicates that she will take the Kedans' checks to the court. The record evidence shows that the payments were made to the Clerk of the Court and that title insurance on the property was timely issued. However, the title and the title insurance policy listed Respondent as owner of the property. Respondent was unaware the property had been titled in his name until he received the certificate of title in the mail, approximately two weeks after the auction. Upon receiving the incorrect certificate of title, he went to the title company and signed a quitclaim deed, effective August 17, 1995, in favor of Ella Kedan. Respondent testified that he had learned from Ms. MacKinnon that the property would be titled in Ella Kedan’s name at sometime during the two-week period after the auction. The quitclaim deed was not notarized until October 9, 1995, and was not recorded until October 10, 1995. However, the face of the deed states that it was made on August 17, 1995. It is plain that the signature line of the notary statement on the quitclaim deed has been altered from August 17, 1995 to October 9, 1995. Respondent had no knowledge of how the quitclaim deed came to be altered. Respondent also had no clear recollection as to why he dated the quitclaim deed August 17, 1995, in light of his testimony that he signed it approximately two weeks after that date. A reasonable inference is that Respondent so dated the quitclaim deed to clarify that Mrs. Kedan's ownership of the property commenced on August 17, the date on which Respondent submitted the winning bid. Respondent also had no knowledge of why the title company failed to record the quitclaim deed at the time he signed it. He testified that on or about October 9, 1995, he checked the Pinellas County computer tax records and discovered that he was still the owner of record. At that time, he returned to the title company to make sure the quitclaim deed was recorded the next day. Petitioner offered no testimonial evidence regarding the events surrounding the titling of the property. Respondent's uncontradicted testimony is credible, consistent with the documentary evidence, and thus credited as an accurate and truthful statement of the events in question. THE CONTRACT FOR REPAIRS Shortly after the auction, Respondent began discussing with Dr. Kedan the possibility of Respondent’s performing repairs on the just-purchased property. Because Dr. Kedan did not testify in this proceeding, findings as to the substance of the negotiations between Respondent and Dr. Kedan must be based on the testimony of Respondent, to the extent that testimony is credible and consistent with the documentary evidence. Respondent testified that Ms. MacKinnon approached him after the auction and asked him if he would be interested in fixing up the house for the Kedans. Respondent testified that he was agreeable to contracting for the work because his carpenter was between jobs and could use the money. Respondent thus met with Dr. Kedan at the doctor’s office to discuss the repairs. Dr. Kedan explained to Respondent that his ultimate plan was to demolish the existing house on the property and to build a more elaborate residence. Dr. Kedan wanted to rent out the house for five years before tearing it down, and wanted Respondent to affect such repairs as would make the house rentable for that five-year period. Respondent testified that Dr. Kedan expressly told him he did not want to spend a lot of money on the repairs. Respondent quoted Dr. Kedan a price of $20,000.00, which was the price it would take to pay for the repairs, with no profit built in for Respondent. Respondent testified that he sought no profit on this job. He had made a substantial commission on the purchase of the property, and anticipated doing business with Dr. Kedan in the future, and thus agreed to perform this particular job more or less as a “favor” to Dr. Kedan. After this meeting with Dr. Kedan, Respondent walked through the house with Irene Eastwood, the Kedans’ property manager. Ms. Eastwood testified that she and Respondent went from room to room, and she made notes on what should be done, with Respondent either concurring or disagreeing. Ms. Eastwood typed the notes into the form of a contract and presented it to Respondent the next day. On September 21, 1995, Respondent signed the contract as drafted by Ms. Eastwood. There was conflicting testimony as to whether Respondent represented himself as a licensed contractor in the negotiations preceding the contract. Respondent testified that he never told Dr. Kedan that he was a contractor, and that he affirmatively told Ms. Eastwood that he was not a contractor. Ms. Eastwood testified that she assumed Respondent was a licensed contractor because Dr. Kedan would not have hired a nonlicensed person to perform the contracted work. She denied that Respondent ever told her that he was not a licensed contractor. The weight of the evidence supports Respondent to the extent it is accepted that Respondent never expressly represented himself as a licensed contractor to either Dr. Kedan or Ms. Eastwood. However, the weight of the evidence does not support Respondent’s claim that he expressly told either Dr. Kedan or Ms. Eastwood that he was not a licensed contractor. Respondent’s subcontractors commenced work immediately upon the signing of the contract. Ms. Eastwood was in charge of working with Respondent to remodel the house, and she visited the site every day, often two or three times. She only saw Respondent on the site once during the last week of September, and not at all during the month of October. She did observe painters and a maintenance man regularly at work on the property during this period. Respondent concurred that he was seldom on the property, but testified that this was pursuant to his agreement with Dr. Kedan that he would generally oversee the work on the property. Respondent testified that he was on the property as often as he felt necessary to perform his oversight duties. Ms. Eastwood testified as to her general dissatisfaction with the quality of the work that was being performed on the property and the qualifications of those performing the work. She conveyed those concerns to the Kedans. Respondent testified that he did not initially obtain any permits to perform the work on the house, believing that permits would not be necessary for the job. On or about October 11, 1995, officials from the City of Belleair Beach shut down Respondent’s job on the Kedans’ property for lack of a construction permit. Respondent made inquiries with the City as to how to obtain the needed permit. City officials told Respondent that a permit could be granted to either a licensed contractor, or to the owner of the property if such property is not for sale or lease. Respondent checked the City’s records and discovered that, despite the fact that he had signed a quitclaim deed on August 17, he was still shown as the owner of the property. Respondent then proceeded to sign a permit application as the homeowner, and obtained a construction permit on October 11, 1995. Respondent testified that because the City’s records showed him as the record owner of the property, he committed no fraud in obtaining a construction permit as the homeowner. This testimony cannot be credited. Whatever the City’s records showed on October 11, 1995, Respondent well knew he was not the true owner of this property. Respondent cannot be credited both with having taken good faith steps to correct the mistaken titling of the property and with later obtaining in good faith a construction permit as the record owner of the property. Respondent testified that in obtaining the construction permit under false pretenses, his main concern was to keep the job going and to finish it in a timely fashion. He testified that there was no financial advantage to him in having the property in his name: he was making no profit on the job, and actually lost money because he had to pay for another title policy in the name of the Kedans. While there may have been no immediate financial advantage to Respondent, he was clearly motivated by the prospect of future profits in projects with Dr. Kedan. The City’s closing down this project jeopardized Respondent’s anticipated continuing relationship with Dr. Kedan, and Respondent took the improper step of obtaining a construction permit as the property owner to maintain that relationship. The Kedans ultimately dismissed Respondent from the job. A claim of lien was filed against the property by the painter hired by Respondent, and the cabinet maker sent the Kedans a lawyer’s letter threatening to file a claim of lien. Mrs. Kedan testified that she paid off both the painter and the cabinetmaker in full. Ms. Eastwood estimated that the Kedans ultimately had to pay an additional $20,000 to $50,000 to complete the repairs to the house, some of which included correctional actions for the improper repairs performed by Respondent’s workers. ALLEGED PRIOR DISCIPLINE Respondent has been the subject of a prior disciplinary proceeding by the Florida Real Estate Commission. In that prior proceeding, the Division of Real Estate's Administrative Complaint alleged that Respondent was guilty of violating Sections 475.25(1)(b) and (1)(k), Florida Statutes. On September 25, 1995, Respondent and the Division of Real Estate entered into a Stipulation disposing of the Administrative Complaint. Under the terms of the Stipulation, Respondent agreed to pay a fine of $1,000, and be subject to one year of probation, during which he would complete 30 hours of post-license education for brokers. The Stipulation expressly stated that Respondent neither admitted nor denied the allegations contained in the Administrative Complaint. The Florida Real Estate Commission entered a Final Order approving the Stipulation on November 14, 1995. Respondent's broker license was suspended by the Florida Real Estate Commission on January 24, 1996. The cause for this suspension was Respondent's failure timely to pay the $1,000 fine imposed by the Stipulation. Respondent paid the fine on February 19, 1996, and late renewed his license on April 24, 1997. In the instant proceeding, Respondent testified that by entering into the Stipulation, he had no intention of pleading guilty to any of the allegations, and that he would never have entered into the Stipulation had he known it would be construed in any way as a guilty plea.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Real Estate Commission enter a final order dismissing Counts One and Three of the administrative complaint, and finding Respondent guilty of violating Section 475.25(1)(b), Florida Statutes, as alleged in Count Two of the administrative complaint, and suspending Respondent’s real estate license for a period of three years and fining Respondent a sum of $1,000. RECOMMENDED this 11th day of March, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 11th day of March, 1998. COPIES FURNISHED: Geoffrey T. Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N-308 Post Office Box 1900 Orlando, Florida 32802-1900 John Bozmoski, Jr., Esquire 600 Bypass Drive, Suite 215 Clearwater, Florida 34624-5075 Jared White White Realty 231 Skiff Point, Suite Seven Clearwater, Florida 34630 Henry M. Solares Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The issue in this case is whether Respondents negotiated the sale of real property and collected a commission on said sale without the requisite real estate license issued by the State of Florida.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty of prosecuting Administrative Complaints filed against real estate practitioners pursuant to the laws of the State of Florida. Respondent Rene Larralde, Jr., is a citizen of the State of Florida. At no time relevant to this proceeding did Larralde hold a Florida-issued license as a real estate sales associate or real estate broker. Respondent Maxous, Inc., is a Florida for-profit corporation formed on August 10, 2004. Larralde is president and registered agent of Maxous. Respondent Glinda G. Hatfield has held licenses as a Florida real estate broker and a Florida real estate associate. As of the date of the incident relevant to this proceeding, Hatfield's real estate broker's license was in an inactive status. Hatfield had failed to meet one of the continuing education requirements for renewal of her license that year. She was not aware of that fact until notification by the state relevant to the issues in this proceeding. Upon receiving notice, Hatfield took the necessary measures to have her license re-instated to active status. Hatfield assisted Larralde in forming Maxous. It was Hatfield's responsibility, as the licensed real estate broker in the new entity, to make sure Maxous was duly registered with the state as a real estate broker. Hatfield went to the Melbourne Association of Realtors to register the business once it had been incorporated. Hatfield did not understand that the business also had to be registered through the Florida Real Estate Commission in Tallahassee. Not being aware of that requirement, Hatfield never registered Maxous with the state. Rather, she paid the fees associated with registration of the company with the local real estate association and made the erroneous presumption that the company could then operate as a licensed real estate broker in the state. On or about February 27, 2008, certain parties entered into a Contract for Sale and Purchase (the "Contract") of property located at 1033 June Drive, Melbourne, Florida (the "Property"). Maxous was designated as the listing broker in the Contract. On April 21, 2008, the sale of the Property closed, as evidenced by a HUD Settlement Statement. The Settlement Statement indicates a real estate commission in the amount of $5,964.18 for the sale. The Settlement Statement indicates $2,982.09 (one half of the commission) is to be paid to Maxous and the other half of the commission to be paid to Exit One Realty. Exit One Realty was the listing agent for the Property, but had not been made aware of the impending sale. As the sole listing agent, Exit One Realty would normally expect to receive the entire broker's commission at the time of closing. However, Exit One Realty was not even aware of the sale of the Property until it received its commission. It appears that Maxous, through the person of Larralde, held itself out as the listing broker and assumed ownership of the commission on the sale of the Property. Larralde did, however, designate Exit One Realty as another broker in the sale who was entitled to half of the commission. At the time of the transaction involving the Property, Maxous was not registered with the State of Florida as a real estate broker. Larralde was not licensed as a real estate sales associate. In order to consummate this sale (and others like it), Larralde had established Maxous. It was apparently Larralde's intent, although he did not appear at the final hearing, to use Hatfield's status as a licensed broker to legitimize Maxous' status as a brokerage firm. Hatfield was amenable to that arrangement. Hatfield was designated as the vice-president of Maxous when the company was formed. As previously noted, Hatfield went to the Melbourne Association of Realtors for the purpose of registering Maxous as a brokerage entity. Hatfield paid the necessary fees to the association for the registration of Maxous with the local real estate association, and, upon inquiry from that office, felt that she had done everything necessary to allow Maxous to operate as a broker. Thus, at the time of the aforementioned transaction, Maxous was not a legitimate broker in the State of Florida. Hatfield assumed she was the registered broker for Maxous; assumed Maxous was duly registered with the state; and assumed that her broker's license was current. In matter of fact, none of those assumptions proved true. Clearly Hatfield did not attempt to circumvent or avoid the requirements for real estate brokers. Rather, she was mistaken about what had to be done regarding registration with the Florida Real Estate Commission. She did not know that her license had been deemed inactive for failure to complete a continuing education class. Neither Larralde, nor anyone else testified at final hearing as to what their knowledge was concerning these matters. It cannot be determined whether Larralde knew Maxous was not a registered brokerage firm and that the transaction relating to the Property was improper. However, Larralde did share the commission with Exit One Realty. It is clear from Hatfield's testimony at final hearing that she did not intend to defraud anyone or to do anything illegal or improper. However, her actions were improper nonetheless. It is not clear from the testimony whether Hatfield received any of the commission provided to Larralde. However, to her credit, Hatfield, upon learning of the violations set forth above, unilaterally ceased doing business as a real estate agent or broker. She acknowledged her mistake and took immediate action to make sure she would not make any further mistakes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Real Estate: (1) imposing a fine in the amount of $5,000 against Respondent, Rene Larralde; (2) imposing a fine of $5,000 against Respondent, Maxous, Inc; (3) imposing a fine of $250 against Respondent, Glinda G. Hatfield; (4) requiring Hatfield to pay the costs of the investigation in this matter; and (5) suspending Hatfield's real estate license for a period of one year. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 24th day of November, 2009. COPIES FURNISHED: Amy Toman, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-Suite 801 North Orlando, Florida 32801 Joseph G. Colombo, Esquire 2351 West Eau Gallie Boulevard, Suite 1 Melbourne, Florida 32935
Findings Of Fact In February of 1988, Petitioner took the real estate broker's examination compiled by Respondent, and otherwise complied with all applicable licensure requirements. The Petitioner received a grade of 74 on the written examination. A grade of 75 or higher is required to pass the test. Had Petitioner answered question number 62 with the answer deemed by Respondent to be correct, Petitioner's score would have been 75 and, as such, would have entitled him to licensure. Question number 62 reads as follows: The Department of Professional Regulation may withhold notification to a licensee that the licensee is being investigated IF: NOTIFICATION COULD BE DETRIMENTAL TO THE INVESTIGATION. NOTIFICATION COULD BE DETRIMENTAL TO THE LICENSEE. THE ACT UNDER INVESTIGATION IS A CRIMINAL OFFENSE. Possible answers to question number 62 were as follows: I only. II only. I and III only. I, II and III. The answer to question number 62 chosen by Petitioner was D. The Respondent determined the correct answer should have been C. The Respondent's examining board followed a standard procedure for conducting and grading the examination. Statistically, 58 per cent of candidates taking the examination and placing in percentile rankings 50 through 99, answered the question correctly. Of those candidates taking the examination and placing in the lower half (0-50 percentile), 33 per cent answered the question correctly. The results obtained to question number 62 from all applicants taking the examination revealed the question exceeded effective testing standards. Question number 62 and the appropriate answer to that question are taken directly from section 455.225(1), Florida Statutes. The purpose of the question is to determine if an applicant is knowledgeable of the law governing real estate broker licensees. The Respondent adopts the position that section 455.225(1), Florida Statutes, mandates that Respondent shall notify a licensee of any investigation of which the licensee is the subject and authorizes withholding notification to that licensee only where such notification would be detrimental to the investigation, or where the act under investigation is a criminal offense. The Petitioner takes the position that section 455.225(1), Florida Statutes, does not prohibit withholding notification of an investigation from a licensee when such notification would be detrimental to the licensee. The Petitioner bases this contention on the broad power provided the Real Estate Commission by section 475.05, Florida Statutes. The Commission has not, however, adopted any rule, regulation or bylaw supportive of Petitioner's position and the statutory mandate is clear. Further, the statute referenced by Petitioner specifically does not support an exercise of this power of the Commission if the result is a conflict with another law of the State of Florida. Section 455.225(1), Florida Statutes, states Respondent "shall" notify "any person" of an investigation of that person. Under that section, discretionary authority to refrain from such notification is allowed only where there is a potential for harm to the investigation, or the matter under investigation is a criminal act.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered confirming the grade of the Petitioner as previously determined. DONE AND RECOMMENDED this 20th day of July, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2442 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 The Petitioner submitted a document entitled summary of hearing and consisting of seven numbered paragraphs. They are treated as follows: Rejected as unnecessary. Included in findings 5, and 7. Rejected, contrary to the weight of the evidence. 4.- 6. Rejected, contrary to evidence adduced. 7. Rejected as argument. Respondent's Proposed Findings The Respondent submitted a three page document entitled "argument" and consisting of eight unnumbered paragraphs. Numbers 1-8 have been applied to those paragraphs. They are treated as follows: 1.-5. Rejected as conclusions of law. 6. Included in findings 8, 9, and 10. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Acting Director Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Phillip I. Salerno 11812 Timbers Way Boca Raton, Florida 33428 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Respondent Sexsmith is a licensed real estate broker, having held License Number 0079448 at all times relevant to these proceedings. Respondent Bellitto is a licensed real estate salesman, having held License No. 0204206 at all times relevant to Case No. 81-2630. Respondent Select Realty, Inc., is a licensed corporate real estate broker, having held License No. 0157174 at all times relevant to these proceedings. Respondent Sexsmith founded Select Realty, Inc., in 1975. He was a full time realtor until his employment by the Hollywood Fire Department in 1976. Select Realty thereafter became inactive. In 1979, Respondent Sexsmith was contacted by a Mr. Jim Holmes, who was seeking to register the corporate name, Select Realty. Sexsmith agreed to permit the name Select Realty to be used by Holmes and his associates to open a real estate office at 3045 North Federal Highway, Fort Lauderdale. Sexsmith also applied to Petitioner for certification as a director and active broker with this company. His application was granted in June, 1979, and he remained affiliated with Respondent Select Realty, Inc., in this capacity until about April, 1980. Respondent Sexsmith did not participate in Select Realty operations and received no compensation for the use of his name and broker's license. He was slated to open and manage a branch office in Hollywood, but this project failed to materialize. Petitioner produced Mr. Tom Ott and Ms. Terri Casson as witnesses. They had utilized the services of Select Realty, Inc., in December, 1979 (Ott) and February, 1980 (Casson). Both had responded to advertisements in which Select Realty offered to provide rental assistance for a $45 refundable fee. These witnesses understood money would be refunded if Select Realty did not succeed in referring them to rental property which met their specifications. Mr. Ott was referred to several properties which did not meet his requirements. He sought to have his fee or a portion thereof returned, but was refused. His demand for such return was made within the 30-day contract period (PX-11). Ms. Casson was similarly dissatisfied with the referrals and sought the return of her fee within the 30-day contract period (PX-7). However, she was unable to contact this company or its agents since the office had closed and no forwarding instructions were posted or otherwise made available to her.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Select Realty, Inc., and Gary Lee Sexsmith be found guilty as charged in Counts Three and Four of the Administrative Complaint filed in DOAH Case No. 81-2630. It is further RECOMMENDED that all other charges against these Respondents and other Respondents named in DOAH Cases 81-2630 and 81-2490 be dismissed. It is further RECOMMENDED that the corporate broker's license of Select Realty, Inc., be revoked. It is further RECOMMENDED that the broker's license of Gary Lee Sexsmith be suspended for a period of one year. DONE AND ENTERED this 18th day of February, 1982, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101, Kristin Building 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 William Grossbard, Esquire Suite 6175M 6191 Southwest 45 Street 6177 North Davie, Florida 33314 Anthony S. Paetro, Esquire Bedzow and Korn, P.A. Suite C 1125 Northeast 125 Street North Miami, Florida 33161 Lawrence J. Spiegel, Esquire Spiegel and Abramowitz Suite 380 First National Bank Building 900 West 49th Street Hialeah, Florida 33012 Mr. Gary Lee Sexsmith 321 Southwest 70t Avenue Pembroke Pines, Florida 33023 Mr. Guiseppe D. Bellitto 2635 McKinley Street Hollywood, Florida 33020 Select Realty, Inc. c/o Mr. Gary Lee Sexsmith last acting Director and Trustee of Select Realty, Inc. 321 Southwest 70th Avenue Pembroke Pines, Florida 33023 Mr. Carlos B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32802
The Issue The issue in this case is whether the real estate license issued to the Respondent, Kathi L. Kitts, should be revoked or otherwise penalized based upon the acts alleged in the Administrative Complaint.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact: Brickell Grove Realty Corporation ("Brickell Grove") is a licensed real estate brokerage corporation in Florida having been issued license number 0245921. From at least May 1988 through September 1, 1988, the sole qualifying broker for Brickell Grove was Frederick Morrison, Jr. (Morrison). At some point in mid to late 1988, (the exact date was not established by competent substantial evidence) Morrison was hospitalized with a terminal illness and his subsequent involvement in the real estate brokerage business was limited. Morrison died on September 1, 1988. Respondent, Kathi L. Kitts (formerly known as Kathi L. Abassi), was licensed by Petitioner as a salesman with Brickell Grove beginning on or about August 13, 1986. Respondent completed the required course for a real estate broker's license in April of 1988. On September 19, 1988, she passed the state exam required to obtain a broker's license. The evidence did not establish when Respondent first filed an application for a broker's license. After passing the exam in September of 1988, Respondent submitted an application which she thought would enable her to become the sole qualifying broker for Brickell Grove. The evidence did not establish the date that application was submitted. That application was not signed by the qualifying broker of Brickell Grove and/or the owner so it could not serve to qualify Respondent as the sole qualifying broker for Brickell Grove. On October 1, 1988, Petitioner issued Respondent a broker/salesman license as an employee of Brickell Grove. That broker/salesman license was revoked in November of 1988 when it was discovered that the corporate registration of Brickell Grove was cancelled effective September 30, 1988 as a result of the death of Morrison and the non-renewal of the corporate license. The exact date of the revocation was not established by competent substantial evidence but it was apparently on or after November 1, 1988. Prior to receiving the revocation notice, Respondent was advised by an investigator employed by Petitioner that her application to become the qualifying broker was deficient because it was not signed by the owner or broker. On October 20, 1988, Respondent filed another application to become licensed as the qualifying broker for Brickell Grove and to change the name on her license from Kathi Abassi to Kathi Kitts. This second application contained the signature of the owner of Brickell Grove. On November 4, 1988, Respondent sent a letter to the Division of Real Estate indicating that Mr. Morrison was seriously ill and that it was urgent that her application to be the active broker for Brickell Grove be approved as quickly as possible. Respondent did not, however, discover that Mr. Morrison had died on September 1, 1988, until sometime in the middle of November when she was advised by Petitioner's investigator. Petitioner approved Respondent's second application to become the qualifying broker for Brickell Grove on November 22, 1988. The approved broker's license was backdated to establish an effective date of October 20, 1988. Effective October 20, 1988, the corporate registration of Brickell Grove Realty Corporation was reinstated upon the Respondent becoming its sole qualifying broker. Respondent admitted that at least during the time period from September 1, 1988 through October 20, 1988, she operated as a salesman in the office of Brickell Grove Realty without any supervision from another broker in the office. However, no competent substantial evidence was offered to establish the nature or extent of business conducted by that office or by Respondent during this time period. Respondent did not open bank accounts or advertise as a broker until after October 20, 1988. While Respondent contends that she thought Mr. Morrison was continuing to carry on as the active broker for Brickell Grove during the time period he was hospitalized and continuing through November (after his death), she admitted that she only saw him on occasion and could not recall when he was last in the office. The limited contact between Respondent and the licensed broker for Brickell Grove is reflected by her lack of knowledge of his death until almost two months after it occurred. While there is hearsay testimony that Mr. Morrison was in the hospital for several months prior to his death and that his involvement with Brickell Grove Realty during the several months preceding his death was limited, or nonexistent, no competent substantial evidence was offered to establish the nature or extent of the business conducted by Respondent without the benefit of supervision by a licensed broker during the time period prior to September 1, 1988. Petitioner had previously initiated an investigation into unlicensed practice by one of the owners of Brickell Grove, Mahmoud Abassi (Respondent's former husband) in July of 1986. That investigation resulted in an August 29, 1986 affidavit executed by Mahmoud Abassi to cease and desist unlicensed real estate brokerage activity. However, no competent substantial evidence was offered to prove any involvement by Respondent in the activities which led to the execution of that affidavit nor was any evidence offered to show that Mahmoud Abassi was actually running Brickell Grove at any point subsequent to the execution of the affidavit. Moreover, no competent substantial evidence was offered as to Respondent's activities and/or supervision during the period from the execution of the affidavit until September 1, 1988.
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 finding Respondent, Kathi Kitts, guilty of operating as a broker without a license during the period from September 14, 1988, to October 1, 1988, reprimanding her and placing her on probation for one year. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of December 1989. J. STEPHEN MENTON 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 15th day of December, 1989.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the administrative complaint, and that his real estate salesman license be REVOKED. DONE and ORDERED this 27th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1986. COPIES FURNISHED: Susan J. Hartmann, Esquire P. O. Box 1900 Orlando, Florida 32802 Mr. Dennis R. Bell FCI, ECU-2 P. O. Box 2000 Lexington, Kentucky 40511 Salvatore Carpino, Esquire 130 N. Monroe St. Tallahassee, Florida 32301 Mr. Harold R. Huff, Director Division of Real Estate 400 West Robinson St. Orlando, Florida 32801
Findings Of Fact The Respondent Jack L. Goodwin, is registered as an inactive real estate broker, holding license number 0032656. In 1975 the Respondent was found guilty of the crime of possession of a stolen motor vehicle. He served six months in the Broward County jail, and was placed on probation for five years. This term of probation was terminated by the court in 1978. On December 29, 1978, the Respondent received a restoration of his civil rights by the State of Florida. The Respondent's present license was applied for in 1979. In this application, the Respondent made full disclosure of his conviction, sentence, and early termination of the probationary term. A copy of the Certificate of Restoration of Civil Rights was also submitted as part of this application. A broker's license was issued to the Respondent on September 17, 1979. Previously, and for a period of approximately seven years, the Respondent held a real estate salesman's license. This license was superceded by the broker's license in 1979. Based upon the uncontroverted testimony of the Respondent, the circumstances surrounding his arrest for possession of a stolen motor vehicle are as follows. The subject vehicle was purchased by the Respondent from persons whom he thought to be legitimate automobile brokers. Sometime thereafter he discovered that the vehicle had been stolen. When the Respondent attempted to sell this vehicle to another party, he was arrested. There is no evidence that the Respondent stole the vehicle initially.
Recommendation Based upon the foregoing findings of fact and Conclusions of law, it is RECOMMENDED that the Administrative Complaint filed against Jack L. Goodwin be dismissed. THIS RECOMMENDED ORDER entered on this 24th day of May, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1982. COPIES FURNISHED: Frederick H. Wilsen, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Jack L. Goodwin 1560 S.W. 19th Street Boca Raton, Florida 33432
The Issue The issues in this case are whether Respondent, Juan C. Chavarriaga, committed the violations alleged in a four-count Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, Division of Real Estate, on January 17, 2008, and, if so, what disciplinary action should be taken against his Florida real estate broker associate license.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the “Division”), is an agency of the State of Florida created by Section 20.165, Florida Statutes, and charged with the responsibility for the regulation of the real estate industry in Florida pursuant to Chapter 475, Florida Statutes. Respondent, Juan C. Chavarriaga, is, and was at the times material to this matter, the holder of a Florida real estate broker associate license, license number 3130017, issued by the Division. At all times relevant, Mr. Chavarriaga was employed as a real estate associate with Ocampo & Alvarez Realty LLC. On or about March 30, 2006, Mr. Chavarriaga rented real property (hereinafter referred to as the “Subject Property”) to Carlos Alvarez for an annual lease amount of $18,000.00 or $1,500.00 per month (Pre-hearing Stipulation). The Subject Property was rented pursuant to a Residential Lease for Single Family Home and Duplex agreement (hereinafter referred to as the “Lease”) which was entered into on or about March 30, 2006 (Petitioner’s Exhibit 5). Mr. Chavarriaga, according to an admission he made to Veronica Hardy, a Division investigator, received rent paid for the rental of the Subject Property pursuant to the Lease. According to an admission of Mr. Chavarriaga, the Subject Property was owned by Claudia Mejia. Mr. Chavarriaga’s real estate broker employer was unaware of the Lease or Mr. Chavarriaga’s involvement therein. The Lease was entered into without written permission from Ms. Mejia, according to another admission of Mr. Chavarriaga. The evidence failed to prove, however, that Ms. Mejia was unaware of the Lease or that she had not verbally authorized Mr. Chavarriaga to rent the Subject Property on her behalf. Mr. Chavarriaga also admitted to Ms. Hardy that he received rents pursuant to the Lease which were deposited with a company named Maux Management. What Maux Management is was not proved. Nor was it proved that Mr. Chavarriagag owned Maux Management. As to what was done with moneys received pursuant to the Lease, the only competent substantial evidence again consists of an admission by Mr. Chavarriaga: he told Ms. Hardy that the rents were deposited with Maux Management, which then paid part of the proceeds for reasonable expenses related to the Lease and deposited the remainder in the account of Ms. Mejia.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Real Estate: Dismissing Counts I and II of the Administrative Complaint; Finding that Mr. Chavarriaga is guilty of the violation alleged in Counts III and IV of the Administrative Complaint; and Suspending Mr. Chavarriaga’s real estate associate license for a period of one year and requiring that he pay an administrative fine of $1,000.00. DONE AND ENTERED this day of 8th day of September, 2008, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 8th day of September, 2008. COPIES FURNISHED: Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Alan A. Glenn, Esquire 14629 Southwest 104 Street, No. 432 Miami, Florida 33186 Thomas W. O’Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N802 Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
