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
Findings Of Fact Respondent, JAMES M. THOMAS, was at all times material to this proceeding a real estate broker licensed with the Florida Board of Real Estate and had been issued license number 0088265. Respondent, JAMES THOMAS REALTY, INC., was at all times material to this proceeding a Florida corporation licensed as a real estate broker and was issued license number 0180981. At all times material to this proceeding, Respondent, JAMES M. THOMAS, was the qualifying officer of the Respondent, JAMES THOMAS REALTY, INC. On May 7, 1980, Respondents, by and through their attorney, filed a civil lawsuit against Monroe Gray and Shirley Gray in which the Respondents sought the payment of a real estate brokerage commission in the Circuit Court of Hillsborough County, Florida. On May 7, 1980, the Respondents, by and through their attorney, filed a Notice of Lis Pendens in connection with the above referenced lawsuit. The sole purpose in the filing of the above referenced Complaint and Notice of Lis Pendens was to protect and collect a real estate brokerage commission which the Respondents believed was owed to them by the owners of the property. To the knowledge of Respondents, the Grays had no other assets located in Florida. On June 3, 1981, the Respondents, by and through their attorney, filed a Release of Lis Pendens on this property.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondents guilty of violating Subsections 475.25(1)(a) and 475.42(1)(j), Florida Statutes (1979), and fining Respondents $250.00 each. DONE and ENTERED this 30th day of August, 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 30th day of August, 1982.
Findings Of Fact The Defendant was at all times material herein registered with the Florida Real Estate Commission as a real estate salesman. On May 3, 1974, the Acting State Attorney filed before the Circuit Court in and for Broward County, Florida an Amended Information charging the Defendant with the offenses of the sale of unregistered securities and the sale of unregistered securities without being registered as a dealer or salesman in violation of Florida Statutes 517.02(1), 517.07, and 517.12(1). On October 11, 1973, the Defendant entered a plea of N0L0 CONTENDERE to both offenses and Judge Humes T. Lasher, Circuit Judge in and for the Seventeenth Judicial Circuit, Broward County, Florida, entered an order withholding adjudication of guilt and placed the Defendant on probation for a period of two years. See Commission's Exhibits 1 and 2. Counsel for the Commission takes the position that the Defendant's entry of a NOLO CONTENDERE plea amounts to an admission and therefore a violation of Chapter475.25(1)(a) and (e), Florida Statutes. The Defendant contrary to the position taken by the Commission, avers that no such inference should be deduced from his entry of a NOLO CONTENDERE plea. He further contends that the plea was entered only because of his wife's mental condition and the extreme hardships brought about by above cited charges, and further that he had never been found guilty or the convicted of any crime in this or any other state. In mitigation, the Defendant testified to his honorary and exemplary military service. Chapter 475,25 sets forth grounds for revocation or suspension of a registrant's license with the Florida Real Estate Commission. Subsection 1(a) thereof provides in pertinent part that a registrant's license may be suspended based upon a finding of fact showing that the registrant has: (a) Been guilty of fraud, misrepresentation, concealment, false promises etc. in this state or any other state, nation or territory. . . or (e) Been guilty of a crime against the laws of this state or any other state or of the United States involving moral turpitude, or fraudulent or dishonest dealing; and the record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of this state, shall be admissible as prime facie evidence of such guilt. On April 30, 1975, Defendant, through his attorney, filed a Motion to Terminate Probation, Adjudicating Petitioner Not Guilty and Set Him Free, which was denied by Judge Lasher on May 12, 1975. In denying said motion to terminate probation, the Judge stated that the Defendant had failed to abide by the rules set forth by the Parole and Probate Commission. No further evidence was presented respecting this motion and/or its disposition. Based on the foregoing Findings of Fact, I hereby make the following: CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. The burden of proving that a licensed real estate salesman has violated the Real Estate Licensing Law lies with the Florida Real Estate Commission or its representative. State ex rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Florida 1973). Insufficient evidence was offered at the hearing to establish that the Defendant based on the allegations contained in Counts 1 and II of the Administrative Complaint filed herein, has engaged in conduct violative of Florida Statutes 475.25(1)(a) and (e). The conduct here alleged and claimed to be violative of the above cited statutes if proven, must rest on a showing that the Defendant has "been guilty of a crime. . ." From the evidence here presented, there was no such showing but rather there was only a showing that an order was entered withholding adjudication of guilt. In view thereof, and since there was no showing that the Defendant has "been guilty of a crime" as set forth in Chapter 475, Florida Statutes, insufficient evidence was offered to establish the allegations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Administrative Complaint filed herein be dismissed in its entirety. RECOMMENDED this 1st day of April, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce I. Kamelhair, Esquire 2699 Lee Road Winter Park, Florida 32789 William B. Seidel, Esquire Justice Building 524 South Andrews Avenue Ft. Lauderdale, Florida 33301
The Issue Whether Respondent obtained his registration as a real estate salesman by means of fraud, misrepresentation, or concealment. On October 14, 1976, Petitioner's Administrative Complaint was sent by registered mail to the Respondent at his designated address: Post Office Box 805, U.S. Highway 52 West, Dade City, Florida 33525. A return receipt signed by the Respondent showed date of delivery as October 26, 1976. (Exhibit 1) However, Respondent did not execute and return an enclosed Election of Rights form that accompanied the Administrative Complaint wherein he could have indicated his desires as to an administrative hearing. Nevertheless, Petitioner requested that a Hearing Officer be appointed in the matter and issued a Notice of Hearing to Respondent at the same address by certified mail on January 19, 1977. This correspondence was returned by postal authorities as "Unclaimed" (Exhibit 2). An Order of the Hearing Officer changing the hour set for the hearing from 10:00 a.m. to 2:00 p.m. on February 15, 1977 was mailed to the Respondent on February 7, 1977. However, neither Mr. Bryant nor any representative in his behalf appeared at the hearing on February 15, 1977. It being determined that proper notice had been provided to the Respondent in accordance with Section 475.40 and Chapter 120, Florida Statutes, the Petitioner presented its evidence in uncontested proceedings.
Findings Of Fact Respondent filed his application for registration as a real estate salesman with Petitioner on October 10, 1972. He completed Question 9 therein in the following manner: "9. Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses, without regard to whether sentence has been passed or served, or whether the verdict or judgment has been reversed or set aside or not, or pardon or parole granted? Yes If yes, state details in full. Yes - See back of sheet" On the back of the application page, Respondent listed the following: "Have 2 traffic tickets, Pasco County, Dade City, Fla. - County Court Improper Passing Out of Date inspection sticker" Respondent was issued his registration as a salesman by Petitioner, effective January 29, 1973, Certificate Number 20527. The certificate was renumbered 0010908 when reissued in 1974 and 1975. It was issued again as "Non Active Salesman" on April 19, 1976 with expiration date March 31, 1978. (Composite Exhibit 3) Records of the Sheriff, Pasco County, show that the Respondent was arrested on six different occasions during the years 1961 to 1970. Five of these arrests were based on worthless check charges and one arrest was for failure to appear, as set forth in the Administrative Complaint of Petitioner. (Exhibit 4, Administrative Complaint) Respondent was charged on October 23, 1970 on an information of the State Attorney for the Sixth Judicial Circuit of Florida in and for Pasco County, Case Number 2010, for "Obtaining property in return for worthless check" in violation of Chapter 832, Florida Statutes. He was also charged on October 23, 1970 in the same Judicial Circuit, Case Number 2011, for "Obtaining property in return for worthless check" in violation of Chapter 832, Florida Statutes. (Exhibit 5)
Recommendation That the registration of Respondent Joseph M. Bryant as a non-active real estate salesman be revoked, pursuant to subsection 475.25(2), Florida Statutes. DONE and ENTERED this 24th day of February, 1977 in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32389 Mr. Joseph M. Bryant Post Office Box 805 U.S. Highway 52 West Dade City, Florida 33525
The Issue At issue herein is whether Respondents' real estate licenses should be revoked or suspended or whether they should be otherwise disciplined for failure to comply with the provisions of Section 475.25(1)(a) Florida Statutes (1977) by failing to disclose a fire-damaged attic to the purchasers of a house.
Findings Of Fact At all times pertinent hereto, Respondents Maureen Ann O'Malley and Frederick E. Lewis held real estate license numbers 0065689 and 0052102 respectively. Respondent O'Malley was employed as a broker-salesman by Respondent Lewis, who operated under the trade name of Lewis Realty with offices in Atlantic Beach, Florida. On or about May 17, 1979, Respondent O'Malley negotiated a contract for the sale of a house owned by Respondents to James E. and Gloria Gipson, husband and wife (Respondents' Exhibit No. 1). The house was located at 825 Plaza Drive, Atlantic Beach, Florida, and the total purchase price was $28,500. In November, 1965, a fire had occurred in the attic of the Gipson's house causing damage to the electrical wiring, and leaving portions of the rafters and attic floor in a charred and blackened condition. However, no structural damage occurred. Shortly after the fire, some of the trusses in the roof were reinforced with two by fours in order to insure the structural integrity of the premises. The house has been sold on a number of occasions since the fire occurred, and before the Respondents purchased the house in early 1979, the most recent sale was 4 or 5 years earlier. The attic is a small space between the roof and the ceiling, and is reached by climbing a ladder and crawling through an opening in the ceiling. It is too small to stand in, cannot be used for living purposes, and its value is limited to storing boxes, suitcases and the like. Prior to the closing, the Gipsons were advised by O'Malley to inspect the property, and if any problems existed, they would he corrected at Respondents' expense. The Gipsons visited the house on at least one occasion before the closing, and were given the keys for the purpose of measuring curtains and installing a television antenna. However, at no time did they inspect the attic, or were they apprised by the realtor of the fact that a fire had occurred. The attic was finally inspected by Mr. Gipson several days after the house was purchased. He found portions of the attic charred, and covered with ashes and soot. Upon being advised by the Gipsons of the attic condition, O'Malley had a contractor check the attic for structural damage. There being none, she then offered to provide cosmetic repairs by spraying it with silver paint, and laying plywood strips on the floor. However, this was unsatisfactory to the Gipsons. Respondent O'Malley did not disclose the attic condition to the Gipsons because (a) she considered the matter to be "immaterial", particularly since there was no structural damage to the attic, (b) the house had been sold on several occasions since the fire, and (c) she was not aware of any prior complaints. Respondent Lewis had only limited contact with the Gipsons, and was not involved in the negotiation of the sale of the house.
Recommendation From the foregoing findings; fact and conclusions of law, it is RECOMMENDED that Maureen Ann O'Malley be found guilty of violating Section 475.25(1)(a) Flrida Statutes (1977), by reason of failure to disclose to or buyers a fire-damaged attic in a residence located at 825 Plaza Drive, Atlantic Beach, Florida. It is further RECOMMENDED that Respondent O'Malley be given a private reprimand. It is further RECOMMENDED that the charges against Respondent Frederick E. Lewis be dismissed. DONE and ENTERED this 12th day of February, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 12th day of February, 1981. COPIES FURNISHED: S. Ralph Fetner, Jr., Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Myron S. Dunay, Esquire 912 American Heritage Life Building Jacksonville, Florida 32202 Ms. Maureen Ann O'Malley 1195 Mayport Road Atlantic Beach, Florida 32233 Mr. Frederick E. Lewis c/o O'Malley Real R:tote 1195 Mayport Road Atlantic Beach, Florida 32233
Findings Of Fact The Respondent Ben D. Harrell, is registered with the Real Estate Commission as a real estate salesman. Copies of the Administrative Complaint filed by the Commission were forwarded to the Respondent at the address he most recently provided the Commission. In addition, a copy of the complaint was hand served upon the Respondent. A copy of the Notice scheduling the final hearing was also forwarded to the Respondent at his last listed address. A Grand Jury for the United States District Court, Middle District of Florida, Jacksonville District, returned an indictment against the Respondent, charging him with knowingly making materially false statements in a Satisfaction of Mortgage submitted to the Federal Land Bank in violation of Title 18 United States Code, Section 1014. The Respondent was convicted of the charges and on May 13, 1977, he was adjudicated guilty and sentenced to serve two years in federal penitentiary, execution of the sentence being suspended, and the Respondent being placed on probation for a period of five years. The crime of which the Respondent was convicted involves dishonest dealing in connection with a real estate transaction, and is a crime involving moral turpitude.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That a final order be entered finding the Respondent guilty of the charges alleged in the Administrative Complaint and suspending the Respondent's registration as a real estate salesman for a period of two years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of July, 1978. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mark A. Grimes, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Ben David Harrell 900 S.W. 15th Terrace Fort Lauderdale, Florida 33312 ================================================================= AGENCY MEMORANDUM ================================================================= November 8, 1978 MEMORANDUM TO: Renata Hendrick, Registration Supervisor FROM: Mark A. Grimes, Staff Attorney RE: PD 3278 FREC vs. Ben David Harrell DOAH Case No. 78-835 Enclosed* is a copy of a Final Order suspending the above named Defendant's registration for a period of two years. Please mark your records accordingly. Mark A. Grimes MAG:lam * NOTE: The Agency Final Order is not available at the Division and therefore not a part of this ACCESS document.
Findings Of Fact Petitioner, Frederick J. Lonsdale, III, made application on July 30, 1985 for licensure as a real estate salesman by examination with respondent, Department of Professional Regulation, Division of Real Estate (Division). Question six on the application requires the applicant to state whether he or she "has ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld." Petitioner answered in the affirmative and gave the following response: 1976 - Driving while license is suspended, drove car while under point suspension 1976 - Petty larceny--I syphoned a tank full of gas out of a truck--guilty/10 days jail. 1977 - Uttering of a worthless check had written a bad check for $81.00 and failed to make it good. Pled guilty and was sentenced [sic] to 6 most probation & restitution. 1981 - Armed robbery--I robbed an Orlando Bank of $6,710 at gunpoint. After reviewing the application the Division issued proposed agency action on November 29, 1985 denying the application on the ground the response to question six indicated petitioner did not comply with the requirement that he be "honest, truthful, trustworthy, and of good character," and that he "have a good reputation for fair dealing." This action prompted petitioner's request for a hearing. Petitioner was candid and forthright in acknowledging his prior problems with the law. Most, if not all, of his arrests and convictions were attributable to a combination of severe financial problems, a divorce and a child custody battle with his former wife. The armed robbery occurred when Lonsdale was in dire financial straits, and only after he had consumed eight alcoholic drinks to build up his courage to commit the crime. Petitioner was incarcerated for the robbery conviction from November, 1981 to November, 1984 and is now on probation. If he completes restitution to the bank by November 1986, he is eligible to end his probation that month. However, if he continues to make restitution at the present rate of $100 per month, he will not be released from parole until November, 1989. In terms of rehabilitation, Lonsdale has reestablished his credit, is in the process of making restitution to the bank, has remarried, and has a steady job which requires contact with the public. Since release from prison, he has handled substantial amounts of cash on occasion. He apparently has a knack for sales work and wishes to become a real estate salesman to enhance his earnings potential. He has been promised a job with an Orlando area real estate firm if he obtains his license. His wife also holds an inactive real estate license, and they intend to work together. Other than one speeding ticket, there is no evidence of any misconduct since petitioner's last episode with the law.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's application for licensure as a real estate salesman by examination be denied without prejudice to petitioner refiling an application at a later date. DONE and ORDERED this 11th day of April, 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 11th day of April, 1986.
Findings Of Fact At all times relevant hereto, respondent, Landmark Real Estate and Investment Exchange, Inc. (Landmark), was a corporation licensed as a broker. It holds license number 0170938 issued by petitioner, Department of Professional Regulation, Division of Real Estate (Division). Respondent, Stephen P. McCrady, was a licensed real estate broker having been issued license number 0227524 by petitioner. McCrady was also the qualifying broker and officer of Landmark. License renewal fees have apparently not been paid by respondents since 1984 and their licenses are accordingly considered to be inactive. However, such licenses can be reactivated by respondents paying the required fees and completing any necessary continuing education requirements. At the present time, McCrady's license has a status of "pending litigation" because of the instant proceeding. On October 28, 1983, the Division (then the Florida Real Estate Commission) entered a Final Order against respondents in which respondents were reprimanded and ordered to pay a $500 fine within thirty days from the date of order. This fine was never paid. On April 3, 1984, respondent McCrady filed a chapter 7 petition in the United States Bankruptcy Court for the Southern District of Florida. On September 17, 1984, that Court entered a Discharge of Debtor order which released the debtor (McCrady) "from all dischargeable debts" and declared null and void certain other debts. The order further provided that "all creditors who [sic] debts are discharged ... (or) whose judgments are declared null and void ... are hereby enjoined from commencing, continuing or employing any action, process or act to collect, recover or offset any such debt as a personal liability of the debtor." Respondent Landmark did not file a petition nor was it a party to McCrady's bankruptcy proceeding. When the agency Final Order was entered, McCrady could not afford to pay the $500 fine. However, he telephoned a Division attorney and asked if he could pay the fine by installments. He was told he could not do this. Shortly afterwards he filed for personal bankruptcy. It was his impression that the bankruptcy proceeding discharged all debts, including the $500 administrative fine. McCrady did not advise the Division that he had filed for bankruptcy until after the complaint in this proceeding had been filed. McCrady intends to again use his real estate license in the future. Because of serious personal and financial problems, he has not used the license for several years.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents be found guilty of violating Rule 21V-10.31, Florida Administrative Code, and Subsection 475.25(1)(e), Florida Statutes (1985), and that they each be required to pay $250 within thirty days from date of the final order in this proceeding to satisfy the terms of the Final Order previously entered on October 23, 1983. Otherwise, their licenses should be revoked. DONE and ORDERED this 19th day of August, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 19th day of August, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1145 Petitioner: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 3. COPIES FURNISHED: Susan J. Hartman, Esquire Post Office Box 1900 Orlando, Florida 32802 Ronald R. Rogowski, Esquire 628 S.E. 5th Avenue Ft. Lauderdale, Florida 33301 Mr. Harold R. Huff, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact By Application for Licensure as a Real Estate Salesman dated September 10, 1985 (Exhibit 5) Respondent applied for and was approved to take the examination for licensure as a real estate salesman. As a result of passing this examination, he was duly licensed. In response to questions 7a and 7b inquiring whether the applicant had ever been charged with fraudulent or dishonest dealing, he answered "No -- but see add. disclosure info attached." Attached thereto was a long typewritten statement disclosing monetary judgments entered against him in Colorado based on non real estate related debt and a pending personal bankruptcy. Before submitting this application, Respondent telephoned the Real Estate Commission to inquire about the answer to question 7 and was referred to an attorney from the Attorney General's Office assigned to the Commission. That attorney advised Respondent that the Commission was primarily interested in criminal charges filed against an applicant and not civil charges. He was further told to include a supplement to his application with information concerning the civil charges, including the name of his attorney, so the Commission could obtain additional information if desired. Respondent complied with this advice by listing the name of his attorney and accountant at the time these civil actions were brought against him. After reviewing Respondent's application with the attached explanation of the civil actions brought against him in Colorado, his application to sit for the salesman's examination was approved. On September 24, 1987, Respondent applied for licensure as a Real Estate Broker and answered questions 7(a) and 7(b) simply "No" on the assumption that his qualified no on the salesman application had been approved and it was unnecessary to again explain the civil actions. The deposition of Respondent's attorney in the Colorado civil actions was admitted as Exhibit 7. Exhibit 1, which includes a judgment of the District Court for the City and County of Denver, Colorado, found Respondent (a corporate defendant in that case) effected a fraud upon the plaintiffs. This finding was entered in a default judgment against Respondent when his attorney negligently failed to timely file an answer to the complaint. Respondent's substitute attorney's motion to set aside the default judgment was denied. Respondent is in the process of filing personal bankruptcy and therein will challenge the default judgment's conclusion that Respondent's actions leading to that judgment were fraudulent. Since no evidence was ever presented regarding the allegations in the Colorado complaint, that judgment is not res judicata in the bankruptcy proceedings.
Recommendation It is RECOMMENDED that the Real Estate Commission issue a Final Order finding Rene A. Remund not guilty of obtaining his licenses as a real estate salesman and broker by fraud, misrepresentation, or concealment. DONE AND ENTERED this 23rd day of June, 1989, in Tallahassee, Leon County, Florida. K. N. AYERS 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 23rd day of June, 1989. COPIES FURNISHED: Darlene F. Keller Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Bruce D. Lamb General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 Arthur R. Shell, Jr., Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802-34698 Wayne J. Boyer, Esquire 1968 Bayshore Boulevard Dunedin, Florida
