Findings Of Fact The Respondent is a licensed real estate salesman, having been issued license number 0073256 authorizing his practice in such a capacity in the State of Florida. The Petitioner is an agency of the State of Florida charged with enforcing the licensure and practice standards embodied in Chapter 475, Florida Statutes, for realtors in the State of Florida. From approximately April 16, 1977, through November 17, 1977, the Respondent, acting in the capacity of a real estate salesman, was employed by a broker by the name of Irwin Kane and Wintex Realty Corporation of Miami, Florida. That entity with Broker Kane was involved in the advertisement, promotion and sale of parcels of unimproved land in west Texas. The Respondent's duties involved making long-distance telephone calls to prospective purchasers of that land (in Cochran County, Texas), attempting to induce them to buy one or more parcels. In the course of this telephone sales campaign, in which the Respondent participated with approximately 20 salesmen making such phone calls, the Respondent used a script prepared for him by Irwin Kane, his employing broker. The script, in general, extolled the attributes of the unimproved property in an arid region of west Texas, representing that the land possessed favorable climatic conditions, water supply and soil conditions for agricultural purposes and was near property in which oil companies were interested. The Respondent contacted a potential buyer by phone who lived in Wisconsin and attempted to persuade the buyer to purchase a parcel of the property through use of the prepared "script" given him by his broker. That potential customer apparently became suspicious of the sales method, manner or assurances given by phone and ultimately was instrumental, along with the United State Attorney, in the filing of an indictment in the United States District Court for the Eastern District of Wisconsin, charging the Respondent (along with his broker, principals of the corporation and other salesmen) with the use of wire communication in furtherance of a scheme to defraud potential purchasers of real estate in violation of Title 18, United States Code, Section 1343. In that proceeding, the Respondent initially professed his lack of knowledge of the truth or falsity of the representations made in the prepared script his broker gave him and required him to use concerning the attributes of the west Texas land involved. Due in part to a dearth of financial resources to devote to litigation, the Respondent ultimately pled nolo contendere on November 7, 1978, to the charge involving using wire communication in a scheme to defraud. He was ultimately found guilty and was placed on probation for three years, with imposition of a sentence of imprisonment being suspended by the court. The Respondent had no part in the preparation of any written materials or "script" which he employed in making the telephone conversation and representations describing the supposed attributes of the property he was attempting to market on behalf of his employer, Broker Irwin Kane and Wintex Realty Corporation. That script was prepared by his broker or others and the Respondent read or consulted from it as he was communicating with prospective purchasers, but had no actual knowledge of its truthfulness or falsity with regard to the representations contained therein. He was shown to have made no representation or verbal communication which he knew to be false when he made it. The Respondent has been the subject of a disciplinary proceeding involving the same factual transaction in the past which culminated in a final order dismissing that administrative complaint. 1/
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law and the evidence in the record, it is RECOMMENDED: That the Respondent, Ed Rich, be found guilty of a violation of Section 475.25(i)(f), Florida Statutes, and that the penalty of a two (2) year suspension of licensure be imposed. DONE and ENTERED this 31st day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF 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 31st day of October, 1983. COPIES FURNISHED: Joel S. Fass, Esquire 626 Northeast 124th Street North Miami, Florida 33161 Mr. Ed Rich 1950 South Ocean Drive Hallendale, Florida 33009 Randy Schwartz, Esquire Assistant Attorney General Department of Legal Affairs Suite 212 400 West Robinson Street Orlando, Florida 32801 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute licensees under Chapters 455 and 475, Florida Statutes. Respondents, Al and Catherine Kravchuk, respectively, hold Florida real estate licenses 0420576 and 0436106. Both licenses are sales licenses. The license of Respondent, Al Kravchuck, became inactive sometime between June 24, 1991, and October 1, 1991. From July 8, 1991, to January 4, 1993, Respondent, Catherine Kravchuck, was licensed as a salesperson with Davis Land Company, Inc. ("Davis Land Company"). From 1979 through 1993, Davis Land Company was engaged in the development of single family subdivisions in the area of Orlando, Florida. Mr. Joel C. Davis was the president of Davis Land Company. Mr. Davis was a nonlicensed owner-developer. Flamingo Lakes Subdivision in Kissimmee, Florida ("Flamingo Lakes") was one of the developments undertaken by Davis Land Company. Davis Land Company employed four sales people at Flamingo Lakes. Respondent, Catherine Kravchuck, was one of the four sales people on staff at Flamingo Lakes. When a contract for sale was generated at Flamingo Lakes, it was turned in at the regular Monday sales meeting. Mr. Davis reviewed the contract to determine the cost of the sale including "extras" and commissions. A cover sheet was attached to each contract to apprise Mr. Davis of the cost of each sale. Respondent, Al Kravchuck, was the U.S. representative for Mr. Christopher Williams and Mr. Jack Dawson. Mr. Williams and Mr. Dawson are residents of Great Britain. Respondent, Al Kravchuck, performed services for Mr. Williams and Mr. Dawson, including services in connection with the purchase of property in the United States. Respondent, Al Kravchuck, represented Mr. Williams and Mr. Dawson in connection with the purchase of Lot 45 in Flamingo Lakes. On January 13, 1992, Respondent, Catherine Kravchuck, prepared a contract between Davis Land Company and Messrs. Williams and Dawson for the sale and purchase of Lot 45. The contract was signed by the purchasers and presented to Mr. Davis at the regular Monday meeting along with the cover sheet. Respondent, Al Kravchuck, was listed on the cover sheet as the cooperating realtor and on the contract as the co-broker. The amount of the commission due the cooperating realtor under the terms of the contract was $5,477.50. Respondents disclosed to Mr. Davis that the commission due Respondent, Al Kravchuck, under the terms of the contract was intended for Mr. Williams. This arrangement was consistent with the understanding that Mr. Williams would refer other customers to Davis Land Company in exchange for the co-broker commission. The contract for the sale and purchase of Lot 45 closed on or about August 28, 1992. The closing statement disclosed that a check in the amount of $5,477.50 was to be paid at closing to Respondent, Al Kravchuck, from the funds due Davis Land Company. Mr. Davis was present at the closing and discussed the prospect of future business referrals with Mr. Williams. Mr. Davis signed the closing statement and accepted the proceeds of closing. The closing agent issued a check for $5,477.50 to Respondent, Al Kravchuck, on September 11, 1992. A memo of the check was sent to Davis Land Company. Pursuant to the agreement of Mr. Williams, Respondent, Al Kravchuck, kept a substantial portion of the $5,477.50 in payment for services rendered to Mr. Williams.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondents be found not guilty of violating Section 475.25(1)(b), Florida Statutes. It is further recommended that Respondent, Al Kravchuck, be found guilty of violating Sections 475.25(1)(a) and (e) and 475.42(1)(b) and (d), reprimanded, placed on probation for one year, and required to complete 30 hours of professional education courses within a reasonable period not less than the period of probation. DONE and ENTERED this 25th day of April, 1994, in Tallahassee, Florida. DANIEL MANRY 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 25th day of April, 1994. APPENDIX Petitioner's Proposed Findings of Fact 1-6 Accepted in substance Accepted as to broker status but not as to employer. Compare statement of agency in proposed finding 8. Accepted in substance First two sentences rejected as recited testimony. Remainder accepted in substance Respondents' Proposed Findings of Fact 4-9 Accepted in substance (The proposed findings are numbered para. 4-9) COPIES FURNISHED: Al Emil Kravchuk Catherine L. Kravchuk 3099 Bridgehampton Lane Orlando, FL 32812-5951 Steven W. Johnson, Esquire Division of Real Estate 400 W. Robinson Street, North Tower Orlando, FL 32801-1772 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire Acting General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0729
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was licensed as a real estate sales associate, holding Florida license number 3035990. In late spring of 2005, the Respondent was contacted by Arnold Macabugao, a California resident who was interested in acquiring a home in Orlando, Florida, for himself and his wife. The Respondent was aware of a house for sale at 14213 Sports Club Way, Orlando, Florida 32837, which she apparently thought would be suitable for the Macabugaos' purchase. The owner of the house was Jack Girton. Mr. Girton did not reside in the property at any time material to this dispute. The Girton house was inhabited by a woman identified as Kim Capiello. Ms. Capiello was an acquaintance of Mr. Girton's. Ms. Capiello had no ownership interest in the property. All documents related to the purchase of the property by the Macabugaos identified Mr. Girton as the owner. During negotiations on the property, the Respondent provided all documents to Ms. Capiello. It is reasonable to conclude that Ms. Capiello transmitted the documents to Mr. Girton. There is no evidence that the Respondent dealt directly with Mr. Girton at any time during the sales process. The weight of the evidence establishes that the Respondent negotiated the Macabugaos' purchase of the Girton property through Ms. Capiello. At some point in the negotiations, the Respondent received a document titled "SIDE AGREEMENT TO PURCHASE CONTRACT" from Ms. Capiello. The document, which required payment of $10,000 directly to Ms. Capiello by the Macabugaos, in relevant part, provided as follows: This side agreement is between Buyers named above and Kim Capiello wherein the buyers agree to give $10,000 to Kim Capiello for services rendered in the search and purchase of the above named property. This agreement is contingent upon the buyers securing a loan, its lender determining a firm closing date and last but not the least, actual closing and funding of the above named property. The amount will be paid as follows: $5,000 to be paid at the time the Purchase contract is signed by all parties for the above property and contingent upon the buyers securing a loan and its lender determining a firm closing date. $5,000 to be paid the day after the closing under the condition being that the above property has been vacated and in move in condition. Kim Capiello further agrees that this side agreement is between her and the buyers only and has nothing to do with the actual purchase agreement entered into by the buyers and Jack Girton. (Emphasis in original) The Respondent facilitated the payment of the $10,000 by the Macabugaos to Ms. Capiello pursuant to the side agreement. The Respondent transmitted the document to the Macabugaos, who signed it. A signature purportedly of Ms. Capiello is also on the document. The Respondent instructed the Macabugaos on how to make the payments. She collected the funds from them. The Respondent used her personal checking account as a transfer mechanism for one of the $5,000 payments. The side agreement does not identify the date of execution, but Mr. Macabugao testified that he signed the side agreement after the sales contract had been signed. The executed sales contract between the Macabugaos and Mr. Girton was dated June 7, 2005. Mr. Macabugao testified that he had no communication with Ms. Capiello. The evidence fails to establish the Macabugaos' rationale for agreeing to make the payments to Ms. Capiello, other than the fact that the Respondent transmitted the document to the Macabugaos and instructed them on how to make the payments. None of the sales documents suggested that Ms. Capiello held licensure in Florida as a real estate professional. Based upon a review of the Petitioner's licensure files, the Petitioner's investigator testified that Ms. Capiello was not licensed in Florida as a real estate professional in any capacity. There was no credible evidence to the contrary, and the investigator's testimony has been credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order finding Eleanor Borling Dioneda guilty of violating Subsection 455.227(1)(j), Florida Statutes (2005); imposing a two-year license suspension followed by a two-year probationary period; imposing a fine of $5,000; and requiring completion of a remedial professional education course to be determined by the Petitioner. DONE AND ENTERED this 11th day of August, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 11th day of August, 2008. COPIES FURNISHED: Jason W. Holtz, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Eric W. Ludwig, Esquire 250 North Orange Avenue, Suite 1250 Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802N Orlando, Florida 32801
Findings Of Fact At all pertinent times, Timothy Vincent Jirgens has been licensed to carry a concealed weapon, holding license number CW 87-00606. He has made timely application for renewal of the license originally issued to him. Since September of 1988, Thomas E. Potts, doing business as Corporate Special Services, has employed respondent as an insurance investigator. Although Mr. Jirgens has not concealed weapons on his person in performing his assignments, he has kept a concealed weapon in his car. Mother Concerned On November 2, 1988, even though it was still early in the morning when he spoke by telephone to his mother in Ohio, Mr. Jirgens was already in his cups. Nor was he in a cheerful mood. The conversation alarmed his mother. Afraid her son might do himself harm, she telephoned the Pensacola Police Department, who dispatched Sgt. Cassidy and Officer Gardner to respondent's home on Barcia Street for a "welfare check." One of the two policemen Mr. Jirgens found when he answered the knocking at his apartment door asked him whether he had any weapons. A gun collector, he told them he had a "small arsenal." With the exception of a single, unloaded revolver lying on a coffee table, however, all of respondent's guns were locked in a safe, unloaded. The police officers did not ask for the guns, or make any request with which respondent failed to comply. Aware of his inebriation, they decided nevertheless that Mr. Jirgens would be all right. "[A]ssured that he was okay," (T.24) they left the premises. Police Return Perhaps because of a superior's reaction to their report, the policemen set out again, this time with the objective of gaining possession of the weapons in Mr. Jirgens' apartment. They stopped about a block away, where they set up a "command center." From their parked patrol car, they contacted Mr. Jirgens' girl friend, whose disaffection had perhaps inspired the drinking bout. They also got up with his roommate, who teaches music in an elementary school, called his mother and sister in Ohio, and enlisted other friends of Mr. Jirgens, in an effort to separate respondent from his gun collection, so that they could take possession of the weapons. As requested by the police officers, none of respondent's friends or relatives let on to Mr. Jirgens that the police were in any way involved in their concerted efforts to induce him to leave his apartment. The music teacher and other friends were in and out, talking to Mr. Jirgens then reporting to the policemen. But Mr. Jirgens "[h]ad absolutely no idea that the police were outside." T.74. Part of the time this was going on the front door to the apartment stood a quarter of the way open. At no time did Mr. Jirgens brandish a weapon. He never refused a direct request from any policeman to leave his apartment. None was made. In response to his friends' suggestions that he go outside, he eventually did. Twice Arrested As Mr. Jirgens left his apartment, Messrs. Cassidy and Gardner (one of whom handcuffed him) confronted him for the first time since their initial conversation. After seizing the guns in his apartment, they took him to University Hospital and left him in the custody of staff in the hospital's mental health ward, known as the Pavilion. About an hour later, the respondent left the ward, possibly through a broken window. Within an hour of the escape, Sgt. Cassidy found him leaving his apartment with a bag full of clothes, took him into custody again, and returned him to University Hospital's psychiatric ward. Judicial proceedings to accomplish involuntary placement were never initiated. After a two-day stay at the Pavilion, respondent was discharged. Later the Pensacola Police Department gave him hid guns back. At no time was respondent adjudicated incompetent. At least the second arrest occurred under the apparent authority of a certificate a clinical psychologist had executed. During their efforts to get Mr. Jirgens to leave his apartment, the police had summoned the psychologist, misinforming him that Jirgens had barricaded himself in his apartment.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint filed against respondent and renew respondent's license. DONE and ENTERED this 28th day of November, 1989, at Tallahassee, Florida. ROBERT T. BENTON, II 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 November, 1989. APPENDIX With respect to petitioner's proposed finding of fact No. 1, respondent filed the application on or about October 5, 1988. Petitioner's proposed findings of fact Nos. 2, 3, 4, 7 and 10 through 14 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 5, nobody in authority asked him to leave. With respect to petitioner's proposed finding of fact No. 6, respondent had only one, unloaded gun not under lock and key. Petitioners proposed finding of fact No. 8 is rejected. With respect to petitioner's proposed finding of fact No. 9, the evidence did not show that respondent agreed to be transported to a receiving facility. Respondent's proposed findings of fact have been adopted, in substance, insofar as material, except that it was not clear when Howell executed the certificate. COPIES FURNISHED: STEVEN J. BAKER, ESQUIRE BAKER & DUKE POST OFFICE BOX 66 15 WEST LARUA STREET PENSACOLA, FL 32591 MIMI DAIGLE, ESQUIRE ASSISTANT GENERAL COUNSEL DEPARTMENT OF STATE DIVISION OF LICENSING THE CAPITOL, MAIL STATION #4 TALLAHASSEE, FL 32399-0250 =================================================================
Findings Of Fact The Respondent Thomas P. Hoolihan is a licensed real estate broker. His last known address is 3440 N.W. Marinatown Lane, North Fort Myers, Florida 33903. Hoolihan is also president of Seago Group, Inc., a publicly held land development and rental corporation, of which Marinatown Realty, Inc., is a wholly owned subsidiary. In late 1977, Hoolihan met L. E. Hutchinson, the complainant in this case, through another broker for whom Hutchinson at the time was employed. In December 1977, Hoolihan and Hutchinson discussed the marketing of two condominium projects being developed by Hoolihan and reached an oral agreement whereby Hutchinson would be paid $18,000 in salary with a 1.5 percent commission on all sales. when the condominium units were completed and mostly sold, the parties' employment agreement was revised in late December 1979. Under the new agreement, Hutchinson was to receive $30,000 a year salary, commission on the remaining condominium units that had not yet closed and any commissions on outside property listings neither owned nor controlled by Seago. In return for the $30,000 guarantee, Hutchinson was to forego commissions on future properties owned or controlled by Seago Group, Inc. During the period from 1977-1978 when Hutchinson was receiving $18,000 plus a 1.5 percent commission, sales were handled through Lee Hutchinson Realty, Inc., which held license number 0182945. In early 1979, Marinatown Realty was incorporated to market Seago's real estate inventory, to identify and list outside properties and to act as a management agent for purposes of renting condominium units previously sold in recent projects. When Marinatown Realty was formed, the complainant became its active broker. While employed as the broker for Marinatown and receiving $30,000 a year as a salaried employee, Hutchinson held two other broker's licenses, one as L. E. Hutchinson Realty, Inc., and another as L. E. Hutchinson. In January 1980, Hoolihan agreed to pay a $15,000 bonus to Hutchinson in lieu of a salary increase. Since at that time sales were minimal, Hoolihan decided to pay the bonus in installments as sales occurred. Because Hutchinson left in May 1980, he received only $10,000 of the bonus which represented monies previously paid. On April 23, 1980, Hutchinson and Chuck Bundschu, a licensed real estate broker, negotiated and obtained a sales contract between Hancock Harbor Properties, Ltd., a wholly owned subsidiary of Seago Group, Inc., seller, and Frank Hoffer, buyer and licensed real estate broker, in which Hoffer offered to purchase approximately 3.16 acres of unimproved acreage for $500,000. Thomas P. Hoolihan, general partner of Hancock Harbor, executed the contract on behalf of the partnership. Prior to presenting the contract to Hoolihan, Bundschu, Hoffer and Hutchins on decided on a 30 percent, 40 percent, 30 percent, respective co- brokerage split on the $50,000 commission due on the sale of the Hancock Harbor Property. The co-brokerage fee split was typed on the bottom of the contract submitted to Hoolihan and was signed by the three brokers. The commission due to Hutchinson was made payable to L. E. Hutchinson Realty, Inc. On April 25, 1980, the contract with the original co-brokerage split was presented to Hoolihan who refused to agree to its co-brokerage split provision. In the presence of Hutchinson, Hoolihan informed Bundschu and Hoffer that he would not pay a commission to Hutchinson because he was a salaried employee of the Seago Group and not entitled to a commission on the sale of this property. Accordingly, the co-brokerage fee provision of the executed contract was never signed by the seller, Thomas P. Hoolihan. Instead, on April 25, 1980, Bundschu, Hoffer and Hoolihan agreed to a split of $20,000 to Hoffer and $15,000 to Bundschu in lieu of the split specified in the original contract. At the closing on July 18, 1980, which was held at Coastland Title Company, a closing statement was prepared which shows that real estate commissions were disbursed to Chuck Bundschu Realty, Inc. ($15,000), Marinatown Realty, Inc., ($15,000) and Hoffer's firm, Landco, Inc., ($20,000). The checks were written and disbursed following a conversation between an official of Coastland Title Company and Hoolihan in which Hoolihan informed the official that Hutchinson was a Seago employee and he would not agree to pay a $15,000 commission to him under such circumstances. On July 18, 1980, a check for $15,000 was issued by Coastland Title Company to Marinatown Realty, Inc. The $15,000 represented Hutchinson's share of the co-brokerage agreement. when received on July 18, 1980, by Billie Robinette, the broker for Marinatown Realty, the check was signed over by her to Seago Group, Inc., since in her opinion it did not represent commissions earned by Marinatown Realty. The oral agreement between Hutchinson and Hoolihan was to terminate at the end of April 1980, or approximately five days after the Hoffer contract was presented. Hoolihan offered to renew the contract without a provision for a guaranteed salary because Marinatown Realty had been consistently losing money since its incorporation. On May 6, 1980, Hoolihan received a letter of resignation from Hutchinson and concluded that his offer had been rejected In early May 1980, Hoolihan received a call from Ms. Robinette, who had been employed as Hutchinson's secretary, regarding filling the open brokerage position at Marinatown Realty, Inc. Hoolihan discovered from Ms. Robinette that Hutchinson had paid himself 50 percent of the commissions due Marinatown Realty, Inc., for the management of condominium rentals. After examining the check stubs from Marinatown's bank account, Hoolihan took personal possession of all the books and records of the company and had the office locks changed. When he examined the books and records of the realty company, Hoolihan realized that his assumption that Hutchinson Realty, Inc., became inactive when Marinatown Realty, Inc. was formed in January 1979, was erroneous and that Hutchinson had operated his own realty company, L. E. Hutchinson Realty, Inc., while employed by Marinatown Realty, Inc. The Administrative Complaint in this case was filed on July 22, 1981. The preliminary investigative report compiled by Robert Corno, DPR Investigator, was filed on September 24, 1981 and the final investigative report was filed on September 30, 1981. The following is a synopsis of the investigator's findings and recommendation: That the COMPLAINANT [Hutchinson] worked for the SUBJECT [Hoolihan] and their contractual agreement was verbal. COMPLAINANT was paid on a salary/commission basis by companies of which SUBJECT is Chief Officer. That the COMPLAINANT filed civil action suit against SUBJECT in this case and it was dismissed with prejudice. That prior investigation by the DPR recommended that no action be taken against the SUBJECT in this case. That two weeks after this investiga- tion was undertaken, an Administrative Complaint was being filed by the DPR against the SUBJECT. That the existing BROKER for MARINATOWN REALTY, INC, was not involved in this case, and that since the time of the above referenced transaction, the SUB- JECT has acquired his BROKER'S license number 020462 which had no effect in this case. That conflicting statements by inter- viewers, namely former and present employees and other agents involved in this case revealed that there is a reasonable doubt for probable cause against the SUBJECT. (Respondent's Exhibit 1) As noted by Investigator Corno, this was the second time Marinatown Realty had been investigated in relation to this case. In both instances, a recommendation that no action be taken was apparently made. At the final hearing on December 1, 1981, counsel for the Department saw the complete investigative report, including the investigator's recommendation of a lack of probable cause, for the first time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against Thomas P. Hoolihan be dismissed. DONE and ORDERED this 30th day of December, 1982, in Tallahassee, Florida. SHARYN L. SMITH, 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 December, 1982. COPIES FURNISHED: Xavier J. Fernandez, Esquire NUCKOLLS JOHNSON & FERNANDEZ Suite 10, 2710 Cleveland Avenue Fort Myers, Florida 33901 James A. Neel, Esquire 1315 Chalon Lane, S.W. Fort Myers, Florida 33903 William M. Furlow, Esquire Department of Professional Regulation - Legal Section 400 West Robinson Street Orlando, Florida 32801 C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Angelo Ciciretti is, and at all times material to this case was, a licensed real estate broker in the. State of Florida, licenses #0262612 and #0264641, for Auction World, U.S.A. Inc., 5245 Ramsey Way #9, Ft. Myers, Florida 33907 and Shamrock Realty & Associates, Inc., 1059 Northeast Pine Island Road, Cape Coral, Florida 33909. Shamrock Realty & Associates, Inc. is, and at all times material to this case was, a corporation registered as a real estate broker in the State of Florida, license #0264446, 1059 Northeast Pine Island Road, Cape Coral, Florida 33909. In 1989, Jerry R. Stephenson, a licensed real estate salesman employed by N. J. Prasser Realty, Inc., sold a parcel of land to Darryl and Pamela B. Atherly, who resided out of state, and intended to construct a residence on the property and move to Florida. A commission was paid on the sale of the property. Mr. Stephenson also in 1989, and subsequent to the Atherly's purchase of the property, introduced the Atherly's to Dennis A. O'Key, a builder. Mr. Stephenson was still employed by N. J. Prasser Realty at the time of the introduction. Mr. O'Key and the Atherly's discussed the costs of building a home for the couple. The evidence fails to establish the existence of any agreement between Mr. O'Key and Mr. Stephenson related to payment of any commission or referral fee based upon the proposed construction of the Atherly's house, and further fails to establish the existence of any like agreement between Mr. Stephenson and the Atherly's, although there is some evidence that the Atherly's, longtime friends of Mr. Stephenson, did suggest that Mr. Stephenson would be compensated for his assistance. At some time subsequent to the Atherly's visit with Mr. O'Key, O'Key ceased building homes. Upon the next contact with the Atherly's, Mr. O'Key referred the couple to R. Fry Builders, Inc., another local home builder. The evidence fails to establish the existence of any agreement between Mr. O'Key, Mr. Fry or the Atherly's related to payment of any commission or referral fee based upon the proposed construction of the Atherly's house. On February 28, 1990, the Respondent applied to have Mr. Stephenson's license transferred to Two Sisters real Estate, Inc., where Respondent was employed. The licensure transfer became effective on March 8, 1990. On or about April 10, 1990, the Atherly's entered into a contract with R. Fry Builders, Inc., for the construction of the Atherly home. The contract makes no provision for the payment of any commission or referral fees. The home was built and the Atherly's took occupancy of the structure. No commission or referral fees were paid by either Mr. Fry or the Atherly's. On or about July 12, 1990, by certified letter, the Respondent contacted R. Fry Builders, Inc., and demanded payment of $4,077.50 as a referral real estate commission. The letter provided that a claim of lien would be filed if no response was received within ten days from the letter's date. The Respondent received no payment from R. Fry Builders, Inc. On or about July 27, 1990, the Respondent placed a claim of lien on the Atherly's home. The lien was recorded in the Lee County, Florida official records book. The Respondent filed the lien for the purpose of collecting the referral commission from the Atherly's. On or about April 9, 1991, the Respondent released the lien and filed the release of lien in the Lee County, Florida official records book. The lien was released after Mr. Stephenson discussed the matter with the Respondent and urged him to withdraw the lien. The Respondent collected no referral commission from the Atherly's. The Respondent has filed no civil action to collect any fees or commissions due from any of the parties material to this case. There has been no judgement entered which would entitle the Respondent to have placed a lien on the Atherly's home.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: that the Department of Professional Regulation, Division of Real Estate, enter a Final Order suspending the license of Respondent Angelo Ciciretti for a period of one year and imposing a fine of $1,000 to be paid within thirty days of rendition of the Final Order in this case. DONE and ENTERED this 18th day of October, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1991. APPENDIX CASE NO. 91-3257 The Respondent did not file a proposed recommended order. The following constitute rulings on proposed findings of facts submitted by the Petitioner. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate Department of Professional Regulation Hurston North Tower 400 W. Robinson Street P.O. Box 1900 Orlando, Florida 32802 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James H. Gillis, Esq. Department of Professional Regulation Division of Real Estate Legal Section - Suite N 308 Hurston Building North Tower 400 W. Robinson Street Orlando, Florida 32801-1772 Angelo Ciciretti Shamrock Realty & Associates, Inc. 812 East Cape Coral Parkway Cape Coral, Florida 33904
The Issue Whether Richard H. White violated Section 475.25 (1)(a), and (2), Florida Statutes.
Findings Of Fact Richard H. White is a registered real estate salesman. White was employed by International Land Services Chartered, Inc. for over one year as a listing representative or closer. He received commissions for his work from International Land Sales Chartered, Inc. The testimony and depositions introduced by the Florida Real Estate Commission against White indicate that the deponents and witness were called by an individual who identified himself as Ed or Bill White or Mr. White, an employee of International Land Services Chartered, Inc. This caller represented that International Land Services Chartered, Inc. could sell the individuals' property in Florida, that the sales of real property in Florida were booming, that there were foreign investors interested in purchasing Florida real estate, and that International Land Services Chartered, Inc. would advertise their property for sale in a catalogue which was distributed to real estate brokers in the United States and overseas. The caller further represented that International Land Services Chartered, Inc. would sell the property through its advertising effort. No evidence was introduced that any of these representations were false. There were no representations made by the caller that the caller had made sales, that there were prospects already interested in the individuals' property, or that the property was worth a given price based upon similar sales by the caller. White testified that he had seen the catalogue prepared by International Land Services Chartered, Inc. and that to the best of his knowledge, these were distributed to brokers in the United States and overseas. There is evidence in the record to support the fact that International Land Services Chartered, Inc. prepared listings and distributed them to brokers. There is no evidence in the record that International Land Services Chartered, Inc. did not produce such a catalogue. Mr. White stated that Mr. Shackett, the broker for International Land Services Chartered, Inc., told him that there had been sales, but discouraged White's further inquiry by telling him that he had been hired to obtain listings and was not entitled to any commission from sales and that matters relating to sales was none of his business. White's testimony was supported by the testimony of others who received similar responses from Mr. Shackett. The testimony of White and others was uncontroverted. The only evidence that Richard White was the caller who contacted the witnesses called against him, was the caller's use of the last name White and the testimony of Richard White that he was the only person named White working for the company.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Richard H. White as a real estate salesman. DONE and ORDERED this 7th day of April, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel Oliver, Esquire Charles Felix, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Ronald L. Fried, Esquire 2699 S. Bayshore Drive Suite 400C Miami, Florida 33133
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found: Respondent, Robert E. Zimmerly (Zimmerly) is a licensed real estate broker having been issued license No. 0127833, with last known address of 500 Hinson Avenue, Haines City, Florida and at all times pertinent to these proceedings was licensed by the State of Florida as a real estate broker. Respondent, Haines City Realty, Inc. (Haines City) is a licensed corporate real estate broker having been issued registration No. 0146307, with its last known business address of 500 Hinson Avenue, Haines City, Florida and at all times pertinent to these proceedings was licensed by the State of Florida as a corporate real estate broker. Haines City's license is currently in an inactive status. At all times pertinent to these proceedings, Zimmerly was the sole broker, of and for Haines City, and was its President. Several weeks prior to April 23, 1981, the date N. B. Willoughby (Willoughby) signed the first offer to purchase the property (offer), Zimmerly along with Barbara Costello (Costello) and Chancellor I. Hannon (Hannon) showed the property described as "Lots 230 and 233 of the Lucerne Park Fruit Association Subdivision, P1at Book 3, Page 67, Public Records of Polk County, Florida" (property), consisting of approximately 20 acres and contiguous to the city limits of Winter Haven, Florida to Willoughby, a prospective buyer, along with Ray Workman (Workman), Willoughby's associate. Costello at the time was a sales person for American Realty of Haines City, now known as American Realty of Polk County, Inc., (American Realty). Zimmerly was representing Haines City. Hannon was representing Ridge Holding Association, Inc., (seller) the owner of the property. The property had originally been listed with Haines City but presently was considered as being listed with American Realty. Subsequent to having seen the property, Willoughby instructed Zimmerly to prepare an offer to purchase, with a purchase price of $70,000, subject to the condition, among others, that the seller would obtain a special exception for a mobile home park. A deposit check for $500 was submitted along with the offer. Costello submitted the offer to Hannon for seller. Sometime around April 25, 1981, Hannon notified Costello that the seller had rejected Willoughby's offer because of the condition concerning a special exception for mobile home park. Within a day, Costello notified Zimmerly of the rejection. Zimmerly requested rejection in writing which Hannon did not furnish until May 11, 1981 due to his involvement in personal matters. Willoughby was not notified of seller's rejection of his first offer until around May 11, 1981. On April 27, 1981, after a verbal notification by Costello of rejection of Willoughby's offer, Zimmerly prepared and submitted an offer to purchase (Ridge offer) from Ridge Crest, Ltd., Agent, (This was apparently meant to be Ridge Crest Villas, Ltd.) signed by Bob Zimmerly, a general and limited partner, to seller, with a purchase price of $72,000, subject to the condition, among others, that seller furnish a letter requesting a special exception for mobile homes park. The Ridge offer was submitted to Hannon for the seller and was accepted by seller on May 5, 1981. On May 18, 1981 Willoughby submitted his second offer to purchase (second offer), with deposit, to seller through Zimmerly. The second offer was identical to the first offer except for the deletion of the condition requiring a special exception for mobile home park. Zimmerly did not advise Willoughby at this time, or at any other time material to the transaction, that Zimmerly was involved in an attempted purchase of the property through Ridge Crest Villas, Ltd. even though the Ridge offer had been accepted on May 5, 1981. Although the Ridge offer indicated a closing date of May 15, 1981, the transaction did not close for reasons not clear in the record, until May 27, 1981. The warranty deed and the mortgage deed executed on day of closing shows Ridge Crest Villas, Ltd. as the Grantee and Mortgagor, respectively. The deposits submitted with both of Willoughby's offers were timely refunded by Zimmerly. Willoughby was notified by Hannon after the closing that his second offer was rejected. On November 6, 1980, a limited partnership known as Ridge Crest Villas Ltd., was filed with the Secretary of State. The record is not clear, but apparently this limited partnership was involuntarily dissolved for failure to file an annual report and on October 14, 1981, an identical limited partnership, with the same name was filed with the Secretary of State. Both limited partnerships listed Robert E. Zimmerly as a general partner with 5 percent interest and listed Robert E. Zimmerly and Dolores J. Zimmerly as limited partners with 45 percent and 50 percent interests, respectively. Respondent Zimmerly's testimony was that: (1) he wanted a written (firm) rejection before notifying Willoughby because of previous dealings with Willoughby; (2) it is not uncommon to use limited partnerships in real estate transactions because of the availability of tax advantages when using a limited partnership; (3) he was acting for Jones and Destefano when he made the offer and purchased the property in the name of the limited partnership; (4) he intended for Jones and Destefano to own the property through the limited partnership and took a promissory note for the down payment; (5) he did not advise Willoughby of his involvement in the purchase of the property, other than in general terms "that some fellows from up north are interested" (Destefano is "from up North") because he had been taught in real estate schools, and it was his policy, not to discuss one prospective buyer's offer with another prospective buyer; and (6) it is common practice to have a "backup" offer as with Willoughby's second offer because you are never sure if a particular transaction will close. Mainly, this testimony went unrebutted by the petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that respondent be found guilty of a violation of Section 475.25(1)(b), Florida Statutes 1981) For such violation, considering the mitigating circumstances surrounding the violation, it is RECOMMENDED that the Board issue a letter of Reprimand and impose an administrative fine of $1,000.00. DONE and ENTERED this 10th day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 10th day of May, 1985. COPIES FURNISHED: James R. Mitchell Staff Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Suite 308 P.O. Box 1900 Orlando, Florida 32802 Arthur C. Fulmer, Esquire P.O. Drawer J Lakeland, Florida 33802 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P.O. Box 1900 Orlando, Florida 32802
