The Issue The issues in this case are: Did the Respondent, Alix Aldonis (Mr. Aldonis), commit fraud; misrepresentation; concealment; false promises; false pretense; dishonest dealings by trick, scheme or device, culpable negligence; or breach of trust in a business transaction by: (a) misrepresenting the sales price of real estate in a sale and purchase contract, (b) misrepresenting a commission amount in a sales and purchase contract, and (c) misrepresenting receipt by an escrow agent of a $5,000 deposit? Did Mr. Aldonis fail to obtain and retain written confirmation from the escrow agent of delivery of the Buyer's funds for purchase of the property?
Findings Of Fact The Department is the state agency charged with the licensing and regulation of the real estate industry in the State of Florida, under the authority of section 20.165, Florida Statutes (2010), and chapters 455 and 475, Florida Statutes (2010). At all times material to this proceeding, the Department licensed Mr. Aldonis as a State of Florida real estate sales associate. He holds License Number SL-3117116, which is in effect until March 31, 2011. At all times material to this proceeding, Total Stop, Inc., d/b/a Total Stop Real Estate (Total Stop Real Estate), contracted with Mr. Aldonis to affiliate with it as a sales associate. At all times material to this proceeding, Lawrence Ligonde, of Total Stop Real Estate, was the licensed real estate broker with whom Mr. Aldonis was affiliated. Mr. Ligonde did not employ Mr. Aldonis. Currently, Mr. Aldonis is affiliated with Tropical Springs Realty, Inc. The agreement between Mr. Aldonis and Total Stop Real Estate did not provide for Total Stop Real Estate or Mr. Ligonde's receiving a percentage commission based on the price of sales that Mr. Aldonis made. Mr. Aldonis paid a flat fee of $495 to be affiliated with Mr. Ligonde. In 2006, Joseph Phen and Cheryl Phen listed a home that they owned, located at 3500 S.W. Viceroy Street, Port St. Lucie, Florida, for sale. They listed the property for $330,000. Ms. Phen was a real estate sales broker. She was the listing agent for the property. Mr. Aldonis represented a buyer in the sale of the Viceroy Street property. The buyer, Manuela Celestin, signed a Residential Sale and Purchase Contract for the property on August 2, 2006. Mr. and Ms. Phen signed the contract on August 3, 2006. They also initialed each page. The contract set forth a purchase price of $272,000. The contract also indicated that the buyer was providing a $5,000 deposit. Mr. Aldonis sent Ms. Phen a copy of the contract and a copy of a deposit check by facsimile transmission. The record does not reveal the sequence of contract signing, contract transmission, check transmission, the date of the check transmission, or whether the contract was transmitted more than once to Ms. Phen. Due to conversations with Ms. Augustine at Premier Choice Title & Escrow, the escrow agent identified in the contract, Ms. Phen grew concerned about whether the deposit had been placed in escrow. She spoke to Ms. Augustine about her concerns. Ms. Phen also told Mr. Aldonis she was concerned that the deposit check may not have been deposited in an escrow account. After the conversation, Mr. Aldonis sent Ms. Phen a copy of a check payable to Total Stop Real Estate from Charassard & Associates, P.A., for $5,000. "Phen/Celestin" is written in the "Memo" section of the check. The check bears the date August 6, 2006. Persuasive evidence does not establish if this was a copy of a second check or another copy of the check Mr. Aldonis transmitted earlier. Ms. Phen requested and received a copy of the Residential Sale and Purchase contract from the title company. The first page of this copy listed the sale price as $330,000. Although Ms. Phen testified about two HUD closing statements, the Department did not offer a copy of a HUD closing statement into evidence. The sale of the property occurred. The closing sale price was $272,000. The Department entered a second copy of the contract signed by the Phens and Ms. Celestin into evidence. The first page of the second contract reflected a sales price of $330,000. The initials at the bottom of the first page are not the initials of the Phens. The rest of the contract is identical to the contract signed by the Phens on August 3, 2006. Nothing in either contract provides for a four percent commission to be paid to any person or entity. There is no persuasive evidence indicating who created the second contract or how the title company obtained it. Mr. Ligonde testified that the contract with the higher purchase price "looks like" the one Mr. Aldonis provided him. The contracts "look" the same. Only a very close examination would identify the differences in the initials on the first page. The difference in amounts is more obvious, but it still requires a reading of the contract, not just looking at it, to note the different amount. Mr. Ligonde did not testify that the second contract entered into evidence came from his files. He also did not provide any information about how files are maintained at his business or who has access to them. He did not know when the contract arrived at his office or how. In addition, Mr. Ligonde's statement that a document "looks like" one provided him by Mr. Aldonis does not equate to testimony that the document is in fact the document Mr. Aldonis provided. At some point in the transaction, the employees of Mr. Ligonde's office, the employees of a title insurance company, and the employees of a mortgage broker had possession and control of the sales contract or a copy of it. The Department did not present credible, persuasive evidence that ruled out any of those individuals having created the new page one with the $330,000 sales price.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 2nd day of February, 2011, in Tallahassee, Leon County, Florida. S John D. C. Newton, II 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 2nd day of February, 2011.
The Issue Whether the Respondent is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, trick, scheme or device in a real estate transaction in violation of Section 475.25, Florida Statutes. Whether the license of Respondent should be revoked or suspended or whether the Respondent should be otherwise disciplined.
Findings Of Fact Respondent is a registered real estate salesperson who holds license no. 0098090. He was employed as a "listing solicitor" by World Wide Property Services, Inc., a registered real estate broker (now dissolved) for about a month, from December, 1975 to January, 1976, soliciting listings for real estate in Florida. The solicitation was by telephone nationwide except Florida Seymour L. Rottman was President of World Wide Property Services, Inc. and Lee Small was Vice President of the corporation during the time Respondent was employed. The purpose of World Wide Property Services, Inc. was to secure listings of and purchasers for various Florida properties. Mr. Rottman subpoenaed witness for Petitioner at subject hearing. During Respondent's period of employment he and Mr. Small were in charge of hiring salesmen for the company and hired Respondent. Respondent was employed to obtain listings by telephone from property owners who lived out of state but owned Florida property. The procedure followed was for a salesman to call an out of state land owner picked from a list of prospects and inquire if he or she would be interested in selling their property at a higher price than it had been purchased for. This was termed a "front" call and the salesman was termed as a "fronter". If the prospect expressed interest in listing the property, his or her name was provided to World Wide Property Services, Inc. who then mailed literature to the property owner describing the efforts that would be made by that organization to sell the property. Enclosed with this material was a listing and brokerage agreement. This agreement provided that the owner of the property would pay a prescribed listing fee to World Wide Property Services, Inc. which would be credited against a 10 percent commission due that firm upon sale of the property. In return, the corporation agreed to include the property in its "listing directory" for a one year period, direct its efforts to bring about a sale of the property, advertise the property as deemed advisable in magazines or other mediums of merit, and to make an "earnest effort" to sell the property. The accompanying literature explained that the listing fee was necessary in order to defray administrative costs of estimating the value of the property, merchandising, advertising, brochuring and cateloging the information. The material also stated that advertising would be placed in various foreign countries and cities of the United States. In addition, it stated that the property would be "analyzed", comparing it to adjacent property to arrive at a price baked on recent sales of neighboring property and also review the status of development and zoning in the immediate area of the property to assist in recommending a correct selling price for approval by the owner. During the curse of the calls to prospects Respondent advised them that the property would be advertised internationally and in the United States and that bona fide efforts would be made to sell the property. She represented herself as a salesman for that organization. After the promotional literature was sent to the prospect, the salesmen including Respondent, made what was called a "drive" call to answer any questions and to urge that the property be listed. After making these calls Respondent had no further contact with the property owner. The listing fee was $325. The salesmen received approximately one-third of the fee, about $100 per listing. The salesmen, including Respondent, telephoned the prospects and then read from the script entitled "front" and "drive". The instructions from the broker was to stay within the script but Respondent was not monitored at all times. During the course of operation of less than a year World Wide Property Services, Inc. secured about 200 listings and grossed approximately $80,000 to $90,000 in the "advance fee" listings, but no sales were made. Respondent said he visited the properties World Wide Property Services, Inc. had for sale in Florida and that most of it was salable. Respondent testified that he read from the script heretofore referred to as "front" and "drive" but varied it from time to time. He was aware of articles stating foreign investors were interested in buying Florida property and thought it entirely possible. Respondent did not attempt to make sales inasmuch as it was not the job for which he was employed. Petitioner contends: that while a salesman for World Wide Property Services, Inc. Respondent solicited and obtained listings by telephone of property owners and that as an inducement to list the property, falsely represented that the property could be sold for a price far in excess of its purchase price; that a bona fide effort would be made to sell the property and that it would be listed nationally and internationally and that the company had foreign investors wanting to purchase United States property; that Respondent solicited Frank Austin, a number of times by telephone and induced him to send to World Wide Property Services, Inc. $285.00 claiming Mr. Austin's property bought for $4,700 could be sold for $14,000 `but that no offer to purchase was ever made. Respondent contends: that he never misrepresented or fraudulently represented anything to any client; induced any potential customer to get his money and that the property was mostly salable.
Recommendation Reprimand the Respondent in writing. DONE AND ENTERED this 21st day of June, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Florida Real Estate Commission Post Office Box 1900 400 West Robinson Avenue Orlando, Florida 32801 Clifford C. Woodard 231 Roxboro East Longwood, Florida 32750
The Issue Whether Choice Plus, LLC is entitled to Unclaimed Property Account Number 103851316.
Findings Of Fact On January 25, 1999, Donald C. Rogers died. On August 19, 1999, the Estate of Donald C. Rogers, (“decedent”) was submitted for probate. The Department received the following described unclaimed property: Account Number: 103851316 Reported Amount: $28,007.01 Reported Name: Rogers, Donald C. Sr. Reported Address: Hillsborough SSN#: None Holder: Clerk of Court Property Type: Cash On March 22, 2005, the probate court entered an Order Granting Petitioner to Distribute Funds and to Distribute Surplus Funds into Registry of Court. The Personal Representative for the Estate had been unable to locate Sean Henry Casner (“Casner”), the decedent’s grandson. Casner’s share of the Estate was $23,689.95. The Order for Discharge was rendered June 24, 2005. On November 3, 2012, Casner executed a Limited Power of Attorney (“LPOA”) authorizing Choice Plus to act on his behalf as Claimant’s Representative. The LPOA disclosed that Choice Plus’ fee was 25 percent of the funds recovered. The 25 percent equaled $5,922.49; the net amount to Casner was $17,767.46. On April 29, 2013, the Department received a completed claim form filed by Choice Plus on behalf of Casner. On August 12, 2013, Choice Plus withdrew its claim on behalf of Casner by email. On August 17, 2013, Casner sold his interest in the property related to the above-referenced account (“account”) to Choice Plus by means of a purchase agreement. On or about August 19, 2013, Casner cashed the $13,029.47 check from Choice Plus for the purchase agreement. On September 3, 2013, the Department received a claim from Choice Plus on behalf of Casner, as the purchaser of the account. The Purchase Agreement disclosed the following: $23,689.95=Approximate Dollar Value of the Property $23,689.95=Amount to be Paid to Buyer $13,029.47=Net Amount to be Paid to Seller Property Account Number(s): 103851316 The Department issued a Notice of Intent to enter a final order denying the claim filed by Choice Plus as the purchaser for the unclaimed property relating to Account Number 103851316. The Department determined Choice Plus failed to comply with section 717.1351, Florida Statutes, by deleting the percentage line in the Purchase Agreement without a flat fee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is REOMMENDED that a final order be entered granting Choice Plus claim to the unclaimed property Account Number 103851316. DONE AND ENTERED this 24th day of June, 2014, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 June, 2014. COPIES FURNISHED: Seann M. Frazier, Esquire Parker, Hudson, Rainer and Dobbs, LLP Suite 750 215 South Monroe Street Tallahassee, Florida 32301 Josephine Schultz, Esquire Department of Financial Services Legal Services, Room 601 200 East Gaines Street Tallahassee, Florida 32399 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated February 5, 2007, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Board is created within the Department of Business and Professional Regulation and is the state agency responsible for regulating and imposing discipline on auctioneers and auction businesses. See §§ 468.384 and 468.189(2), Fla. Stat. At the times material to this matter, the Auction Depot was a licensed auction business in the State of Florida. The auction business license of Auction Depot expired effective November 30, 2007, and has been considered delinquent since December 1, 2007. Anton Rechner was the president of Auction Depot at the times material to this proceeding. Kathy Murphy is the owner of Endless Treasures Estate Sales and Service ("Endless Treasures"). On December 29, 2005, Mrs. Murphy consigned a number of items with Auction Depot for sale at auction. Auction Depot conducted an auction on January 5, 2005, and sold a number of the items Mrs. Murphy had put on consignment on December 29, 2005. On January 6, 2006, Mrs. Murphy picked up from Auction Depot a list of items sold at the auction on January 5, 2005. The list included the items Mrs. Murphy had put on consignment, with the lot numbers for each item, the sales price for each item sold, the Auction Depot's commission for each item sold, and the total due to Mrs. Murphy for each item sold. Among the items shown sold on the list Mrs. Murphy picked up on January 6, 2006, were two mahogany hutches; the sales price was shown as $600.00 for each hutch, and $450.00 was owed to Mrs. Murphy for each hutch. The list Mrs. Murphy picked up on January 6, 2006, also included several items that were not sold at the January 5, 2006, auction, and no sales price or the notation "$0.00" was shown on the list. The total amount owed to Mrs. Murphy stated on the list of items Mrs. Murphy picked up on January 6, 2006, was $4,976.25, on total sales of $6,635.00. Mrs. Murphy did not receive payment of the $4,976.25 from Auction Depot shown on the list she picked up on January 6, 2006. In February 2006, she received a check for $4,113.75, together with a revised list showing that the mahogany hutches had not been sold. Mrs. Murphy was told that the person who purchased the mahogany hutches had not paid for them. On January 10, 2006, Auction Depot picked up additional items from Endless Treasures on consignment. The items were auctioned on January 12, 19, and 26, 2006. A list of the items sold at the January 12, 2006, auction shows that two mahogany "bookcases" were sold for $450.00 each. Mrs. Murphy was at the auction and identified the "bookcases" as the mahogany hutches that she sent to Auction Depot on December 29, 2005. These two items were sold in a telephone auction, but there was no speakerphone, so that the only person who could hear the telephone bids was Mr. Rechner. Mrs. Murphy later saw the hutches for sale in an antique gallery owned by Mr. Rechner. According to the list provided by Auction Depot of the items sold at the January 12, 2006, the gross sales totaled $2,292.50, minus Auction Depot's commission of $573.13, for a total owing to Mrs. Murphy of $1,719.38. Mr. Rechner wrote a check to Endless Treasures for $1,719.38 and gave it to Mrs. Murphy; the check was dated January 12, 2006, but it was not signed, and Mrs. Murphy could not cash it. When she returned to Auction Depot and asked Mr. Rechner to sign the check, he refused with a rude remark and told her that he would see her in court. Mrs. Murphy finally received a check from Auction Depot for the $1,719.38 owed for the items sold on January 12, 2006; the check was dated January 1, 2006, and signed by Mr. Rechner. It was sent to Mrs. Murphy through the Board, after she filed a complaint against Auction Depot. The total amount owning Mrs. Murphy for the items sold on Mrs. Murphy's behalf on January 19 and 26, 2006, was $53.13 and $105.00, respectively. Mrs. Murphy received payment of these amounts in February 2006. A number of the items Mrs. Murphy placed with Auction Depot were not sold at the auctions held on January 5, 12, 19, or 26, 2006. Although Mrs. Murphy and her husband asked several times that Auction Depot return the unsold items, they were told that they had been broken or could not be found. Mrs. Murphy never received the unsold items from Auction Depot. The evidence presented by the Board is sufficient to establish with a high degree of certainty that Mrs. Murphy did not receive payment for the items sold on January 5, 2006, within a reasonable amount of time. The evidence presented is also sufficient to establish with a high degree of certainty that Auction Depot committed acts of bad faith and dishonesty in connection with the sales of Mrs. Murphy's property by not returning unsold items to Mrs. Murphy and by manipulating the sale of the two mahogany hutches for his own benefit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Auctioneers enter a final order finding that Auction Depot violated Section 468.389(1)(e) and (c), Florida Statutes, in connection with the transactions involving Endless Treasures Sales and Service and imposing an administrative fine of $2,000.00. DONE AND ENTERED this 28th day of April, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 28th day of April, 2009.
Conclusions The sole main issue raised by the Division's charges against Morgentaler is whether Morgentaler offered or disposed of lots in Pinecrest without a valid order of registration or disposed of lots in Pinecrest without delivering to the purchaser a current public offering statement, in violation of Section 498.023, Florida Statutes (1983). Section 498.023 provides, in pertinent part: Unless the subdivided lands are exempt or the transaction is exempt pursuant to s. 498.025: No person may offer or dispose of, or participate in an offer or disposition of, any interest in subdivided lands located in this state, nor may any person offer or dispose of, or participate in an offer or disposition of, any interest in subdivided lands located without this state to persons in this state, nor may any person within this state offer or dispose of, or participate within this state in an offer or disposition of, any interest in subdivided lands located without this state to persons located without this state, unless such person has a valid order of registration therefor. No person may dispose of, or participate in the disposition of, any interest in subdivided lands unless a current public offering statement is delivered to the purchaser prior to the disposition, the purchaser is afforded a reasonable opportunity to examine the public offering statement prior to the disposition, and the contract and public offering statement used contain a provision which authorizes the purchaser to cancel the agreement without cause until midnight of the seventh day after execution by the purchaser. Section 498.023 must be read together with the definitions in Section 498.005(5) and (9): 6/ (5) "Disposition" means any transaction involving any interest in subdivided lands which is entered into for profit, including any sale, resale, lease for more than 5 years, assignment, or award by lottery of any interest in subdivided lands. . . . . (9) "Offer" includes every inducement, solicitation, or attempt to encourage a person to acquire any interest in subdivided lands, if undertaken for gain or profit. The answer to the issue at hand comes from an application of the peculiar facts of this case to those statutory provisions. The evidence is sufficient to prove that the client entered into at least some of the transactions for profit and undertook to offer the property for gain or profit. Therefore, Morgentaler's client disposed of or offered interests in subdivided lands. The second, and more difficult, step in the analysis is whether Morgentaler "participated in" the offers and dispositions of his client under 498.023. In the broad sense, it certainly could be said that Morgentaler participated in the dispositions (and perhaps even offers) as lawyer for the client. It is doubtful that the Legislature intended "participate in," as used in 498.023, to be construed so broadly. Such an interpretation would require all persons having any connection with the disposition or offer--including all accountants, lawyers, sales personnel, and clerical assistants--to have a valid order of registration. But nor should "participate in" be construed in its narrowest sense to mean only financial participation in the profit or gain from the offer or disposition. Instead, the proper construction of "participate in" an offer or disposition would include participation as holder and grantor, as trustee for an undisclosed beneficiary, of the property in question. Under this construction, Morgentaler was subject to Section 498.023(1) and (2). Alternatively, if Morgentaler did not "participate in" the offers and dispositions, consideration must be given to the question whether, as a matter of law, Morgentaler stands in the shoes of his client when he acts as trustee for an undisclosed client who is attempting to offer and dispose of subdivided lands without complying with the requirements of Section 423.023. Neither Section 689.07, Florida Statutes (1983), nor the decisions in Arundel Debentures Corp. v. LeBlond, 190 So. 765 (Fla. 1939), and Glusman v. Warren, 413 So. 2d 857 (Fla. 4th DCA 1982), directly answer this question. Those authorities only address situations in which either one of the parties to the trust relationship or a bona fide purchaser attempts to void the trust. But they do help frame the proper inquiry in this, case: whether, under the circumstances, Morgentaler is estopped to deny that he offered and disposed of the Pinecrest lots. It is concluded that Morgentaler, by holding, and conveying legal title for an undisclosed beneficiary who is subject to the requirements of 498.023(1) and (2), is estopped to deny that he, too, is subject to those requirements. In his posthearing brief, Morgentaler attempted to claim an exemption from 498.023 under Section 498.025(1)(d), Florida Statutes (1983): Unless the method of offer, disposition, or transfer is adopted for the purpose of evasion of this chapter, the provisions of this chapter do not apply to: . . . . (d) A subdivision as to which the plan of disposition is to dispose to 45 or fewer persons. But Morgentaler never before claimed an exemption and explicitly waived any claim of exemption at final hearing. In addition, even if he had properly claimed the exemption, Morgentaler presented no evidence to prove any "plan of disposition," and the exemption would not have been proven. Section 498.051 Florida Statutes (1983), provides in pertinent part: The division may issue an order requiring a person to cease and desist, and to take such affirmative action as in the judgment of the division will carry out the purpose of this chapter, if the division determines that the person has: Violated any provision of this chapter; Directly or through an agent or employee knowingly engaged in any false, deceptive, or misleading advertising, promotional, or sales methods to offer or dispose of any interest in subdivided lands. . . . . The affirmative action to be taken by a person pursuant to an order authorized by subsection (1) may include, but is not limited to: Notifying any purchaser of subdivided land who has a rescission right pursuant to contract or pursuant to other provisions of this chapter that the purchaser may elect to rescind the purchase transaction as provided by contract or by other provisions of this chapter . . . . Section 498.049(4), Florida Statutes (1983), provides: The division may, by order, impose civil penalties against any persons for violations of this chapter or rules relating hereto. Such imposition of a civil penalty shall not preclude the division from invoking any other appropriate remedy authorized by this chapter . . . No civil penalty so imposed shall exceed $10,000 for each offense . . . .
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Division enter a Final Order: That respondent Richard Morgentaler cease and desist from offering or disposing, as trustee for undisclosed beneficiaries, and from participating, as trustee for undisclosed beneficiaries, in the offer or disposition of interests in Pinecrest Estates or any other subdivided lands until he has a valid order of registration, delivers a current public offering statement, and otherwise complies with Charter 498, Florida Statutes; That respondent Richard Morgentaler give Shirley Arthur a right of rescission and refund as to her purchase of Lots 4-9 in Block 18 and 30-32 in Block 17 of Pinecrest Estates. Respondent shall give Arthur notice of her right of rescission and refund within 30 days from entry of the Final Order, notifying Arthur that the right of rescission and refund, if exercised, would be for a refund of $21,860, with interest at 9 percent per annum from August 29, 1980, plus all real estate taxes paid by Arthur on the property. The notice also shall state that, to exercise the right of rescission and refund, Arthur would have to request the refund in writing within 30 days from receipt of the notice and, on receipt of the refund, give respondent a quit claim deed to the property; and That respondent Richard Morgentaler shall pay o the Division, within 30 days from entry of the Final Order, a civil penalty in the amount of $5,000 for violation of Section 498.023(1) and (2), Florida Statutes (1983). RECOMMENDED this 7th day of May, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSON 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 7th day of May, 1984.
Findings Of Fact 1. On October 15, 2009, the Department issued a Notice of Intent to enter a final order denying claim number C2782114 on the grounds that Mr. Merkle failed to submit the recovery agreements with the claim, and that he was not a registered claimants' representative. See Exhibit A. The Notice of Intent was served on Mr. Merkle by Certified Mail™ Service on October 21, 2009. See Exhibit B. 2. On December 22, 2009, Mr. Merkle requested a hearing. See Exhibit C. On January 4, 2010, the Department referred the matter to the Division of Administrative Hearings for formal proceedings pursuant to sections 120.569 and 120.57(1), Florida Statutes. See Exhibit D. The Division of Administrative Hearings ("DOAH") assigned the case number 10-0005. 3. On February 26, 2010, the Department moved the administrative law judge to relinquish jurisdiction to the agency based on a lack of material facts in dispute. See Exhibit E. 4. On March 4, 2010, the administrative law judge entered an order relinquishing jurisdiction to the agency for final agency action. See Exhibit F. No exceptions to the recommended order were filed. 5. The factual allegations contained in the Notice of Intent, incorporated herein by reference, are adopted as findings of fact in this case.
Conclusions On October 15, 2009, the Department of Financial Services ("Department") issued a Notice of Intent to enter a final order denying claim number C2782114 filed by LeRoy H. Merkle, Jr., ("Mr. Merkle"), for funds held in the state treasury in the name of Anne (a/k/a Anna) Marie Clegg (the "Reported Owner"), pursuant to Chapter 717, Florida Statutes (the "Disposition of Unclaimed Property Act" or the "Act"). In order to take final agency action concerning the - claim, the Chief Financial Officer has considered the record in this matter, and makes the following Findings of Fact and Conclusions of Law:
Appeal For This Case Any person adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Florida Rule of Appellate Procedure 9.110. Review proceedings must be instituted by filing a notice of appeal with DFS Agency Clerk Julie Jones, CP, FRP, Florida Department of Financial Services, 200 E. Gaines Street, Tallahassee, FL 32399-0390, Telephone (850) 413-4177, Julie. Jones@MyFloridaCFO.com, and a copy of the same accompanied by the required filing fee with the appropriate District Court of Appeal within thirty 30) days of rendition of this Order. DONE and ORDERED this__/p/h___ day of hyo ct , 2010. TAMMY TESTON Chief of Staff Case No. 107119-09-CI Page 3 of 4 CERTIFICATE OF SERVICE I CERTIFY that a copy hereof has been furnished by Certified Mail™ Service and facsimile as indicated, this lo AL day of Aga A f ; 2010, to: LeRoy H. Merkle, Jr., Esquire 800 West Platt Street, Suite 4 Tamanna Plasidn 22406 41 7108 2133 3935 23134 0410 (article number) and facsimile: 813-251-3377 Mark W. Brunner 2950 South Holly Avenue Amelia, Ohio 45102 91 7108 2133 3935 23238 0627 (article number) Michael Lee Brunner 1408 Wilson Dunham Hill New Richmond, Ohio 45157 91 7108 21335 3935 2318 0834 - {article number) L_ LORI L. JOBE Fla. Bar No. 16650 Assistant General Counsel Florida Department of Financial Services 200 East Gaines Street Tallahassee, FL 32399-4247 copies to: Walter T. Graham, Chief Unclaimed Property Bureau Fletcher Building, Room 352 M Tallahassee, Florida 32399-0358 Lori L. Jobe, Esquire Division of Legal Services Fletcher Building, Room 464 Tallahassee, Florida 32399-4247 Case No. 107119-09-CI Page 4 of 4
Findings Of Fact Seymour Astern, Respondent, is registered as a real estate salesman in Florida and has been so registered for approximately 15 years. While employed by Las Vegas Land in the early 1970's as sales manager promoting out-of-state land sales, Respondent, as well as the developer of the land was indicted on numerous counts of mail fraud, misrepresentation, etc. Initially there were 23 felony charges against Respondent, all related to fraud and misrepresentation involving real estate sales. Approximately one and one half years after being first charged, Respondent's attorney worked out an arrangement with the U.S. Attorney where Respondent would plead guilty to the charge of accessory after the fact, a misdemeanor, and the felony counts would be dismissed. Accordingly, on May 20, 1974, Respondent pleaded guilty to a violation of Title 18, Section 3, United States Code and was sentenced to he confined for 30 days and fined $500. The information to which Respondent pleaded guilty alleged that Respondent, knowing that one Lanvin had made a false report to the Department of Housing and Urban Development in violation of 18 U.S.C. 1012 did, knowingly and willfully assist said Lanvin in order to hinder and prevent his apprehension for trial and punishment. While testifying in his own behalf Respondent admitted that he was acting as an Arizona sales agent for the Nevada land developer, Lanvin, who was subsequently convicted of mail fraud. Astern disclaimed personal knowledge of Lanvin's activities, contending that he only promoted the meetings of groups to who sales pitches were made leading to investment in Nevada land. At the time he pleaded guilty to the charge of accessory after the fact, Respondent contends he did so on the assumption that the charge would be nolle prossed. He was aware that his plea of guilty was the basis for the U.S. Attorney dropping the felony charges against him and he fully understood the meaning of nolle prosequi. Yet he testified that had he known the charges would not be nolle prossed he would not have pleaded guilty, but would have gone to trial on the felony charges for mail fraud, misrepresentation, etc. In late-filed Exhibit 5 the attorney who represented Astern at his trial in Arizona indicates he arranged for a plea of no contest to the misdemeanor charge of accessory after the fact and understood that such a conviction would not affect Respondent's Florida real estate license. In Exhibit 5 no mention is made of the charges ever being nolle prossed or of the sentence of the court being of a nature to shock either him or his client.
The Issue The issues in this case are whether Respondent violated sections 475.622(1), 475.622(2), 475.624(2), and 475.624(15), Florida Statutes (2007),1/ and Florida Administrative Code Rule 61J1-7.001(2), and, if so, what discipline should be imposed.
Findings Of Fact Mr. Hormes has been a state-certified general real estate appraiser since March 30, 1992. He was disciplined by the Department in 1995. On or about September 4, 2007, Mr. Hormes prepared an appraisal report (Original Appraisal)2/ for real property located at 754 West 4th Street, Cape Coral, Florida (Subject Property). The file number assigned by Mr. Hormes was 0708-248. Mr. Hormes signed the Original Appraisal on September 7, 2007. On the morning of September 7, 2007, he communicated the Original Appraisal to Cirrus Mortgage, which was the intended user of the appraisal. The Original Appraisal appraised the value of the Subject Property at $240,000, using a sales comparison approach. On the signature page of the Original Appraisal, Mr. Hormes stated that his state certification was "State Cert. Gen. Res. REA 1337." On the cover letter transmitting the Original Appraisal, Mr. Hormes put the following designation underneath his name: "State Cert. Gen. REA RZ #1337." The Original Appraisal had numerous errors. Mr. Hormes stated that the Subject Property was zoned as residential, but the Subject Property was zoned corridor district. The Original Appraisal stated the Subject Property was a two-story ranch, when it was a one-story ranch. The actual age of the Subject Property as of September 4, 2007, the effective date of the Original Appraisal, was 26 years. Mr. Hormes used three comparable sales to compare to the Subject Property. Two of the three comparable sales were listed as four years old. Mr. Hormes listed the age of the third comparable sale as nine years, but the house was built in 2003, making it four years old at the time of the appraisal. The Original Appraisal states that there were comparable sales in the Subject Property neighborhood that ranged from $180,000 to $265,000. There was nothing in the work file to support Mr. Hormes's statement that there had been a $265,000 sale. The Original Appraisal states that there were listings available for $175,000 to $260,000 in the Subject Property neighborhood, meaning that potential buyers could chose a less expensive alternative to the Subject Property. There was no explanation in the Original Appraisal why a potential buyer would choose the higher priced Subject Property over the less expensive listing. Mr. Hormes testified that the listing for $175,000 was undesirable because of impact fees, but there is no mention in the work file to support this assertion. Mr. Hormes incorrectly listed the view of the Subject Property as residential. The Subject Property was located across the street from a Carrabas restaurant and a strip mall. Although Mr. Hormes did note in the Original Appraisal that there were some external inadequacies due to the Subject Property being located directly behind a restaurant, strip mall, and commercial stores, he did not adjust or analyze for external obsolescence of the Subject Property. Mr. Hormes stated in the Original Appraisal that the cost of the three comparables was weighted equally in determining the $240,000 value of the Subject Property. However, Mr. Hormes determined that the adjusted sale prices of the three comparables were $241,500; $239,200; and $249,000. Based on these adjusted sale prices, the value of the Subject Property would have been $243,233. Mr. Hormes made a positive adjustment to Comparable Sale 1 of $21,500 for location, but no adjustments were made for Comparable Sales 2 and 3 for location. The Original Appraisal did not state why the positive adjustment was made for Comparable Sale 1, why no positive adjustments were made for Comparable Sales 2 and 3, and why a positive rather negative adjustment was made. At the final hearing, Mr. Hormes stated that he used a paired sales analysis for his locational adjustments; however, there was nothing in the work file to indicate that he used a paired sales analysis. Mr. Hormes stated in the Original Appraisal that property values in the neighborhood of the Subject Property were stable. However, based on documentation in Mr. Hormes's work file, the property values were declining. There were also inconsistencies within the Original Appraisal. On page 1 of the Original Appraisal, Mr. Hormes stated that the marketing time for one-unit housing was over six months. In the addendum to the Original Appraisal, Mr. Hormes stated that the marketing time was typically from three to six months. Cirrus Mortgage is a correspondent lender; thus, it was no surprise to Mr. Hormes that he received a letter from Chase Home Lending (Chase) dated January 29, 2009, concerning the Original Appraisal. Chase advised Mr. Hormes that a field review of the Original Appraisal had been done and that, based on the review, Mr. Hormes's "appraiser status has been changed to Ineligible for Chase Home Lending and we will not accept appraisal reports performed in whole or in part by you effective immediately." A copy of the appraisal field review report was enclosed with the letter. Chase advised Mr. Hormes that it would consider a written response to the appraisal field review report. By letter dated January 7, 2009, Mr. Hormes responded to Chase concerning the appraisal field review report. He pointed out errors that he felt were in the appraisal field review report. Mr. Hormes stated that, at the time the appraisal was done, the appraisal was $234,000. By letter dated January 29, 2009, Chase filed a complaint with the Department concerning the Original Appraisal. Martin Straw (Mr. Straw), an investigator with the Department, notified Mr. Hormes by letter dated March 3, 2009, that a complaint had been filed against him concerning the Original Appraisal. By a separate letter dated March 3, 2009, Mr. Straw requested that Mr. Hormes provide "a true and accurate copy of the appraisal as delivered to the client" and "a complete copy of your entire working file and supporting data for this appraisal." By March 19, 2009, the investigation had been reassigned to Mike McKinley (Mr. McKinley), an investigator for the Department, and Mr. McKinley wrote Mr. Hormes, advising of the transfer. By June 5, 2009, Mr. McKinley had not received a copy of the appraisal sent to the client and a copy of Mr. Hormes's entire working file, and Mr. McKinley wrote Mr. Hormes and again requested that the documentation be provided to the Department. By letter dated March 10, 2009, Mr. James R. Mitchell of Baker & Hostetler LLP wrote Mr. Straw, advising that the law firm would be representing Mr. Hormes. By letter dated June 26, 2009, Mr. Jacob R. Stump of Baker & Hostetler LLP sent a response to the Department concerning the complaint filed by Chase and enclosed what purported to be Mr. Hormes's work file and "a copy of the Original Appraisal as sent to Mr. Hormes' client." Mr. Hormes claims that he signed and sent the Original Appraisal to the client on the morning of September 7, 2007. He testified that he was looking over the Original Appraisal in the afternoon and discovered some errors that his computer software review program did not catch. He further testified that on the afternoon of September 7, 2007, he corrected the errors, prepared an Amended Appraisal, signed the Amended Appraisal, and sent the Amended Appraisal to the client. Mr. Hormes's testimony concerning the preparation of an Amended Appraisal on September 7, 2007, is not credible for many reasons. In the Amended Appraisal, Mr. Hormes added three additional comparable sales and a short sale. He states that the source of the data for Comparable Sales 5 and 6 came from public records and that the effective date of the sources is September 17, 2007, which is ten days after he claims that he prepared, signed, and communicated the Amended Appraisal. The work file of Mr. Hormes contains a list of properties that he looked at to determine comparables for the Original and Amended Appraisals. Some of the sales are dated a week to two weeks after the Amended Appraisal supposedly was signed and communicated. The work file contains supporting data for the comparable sales that are dated January 7, 2009, which is the date that Mr. Hormes responded to Chase's letter declaring him ineligible to prepare appraisals for Chase. Mr. Hormes claims that he just consulted the public records and multiple listings for the information at the time that he prepared the Original and Amended Appraisals and did not place them in the work file. There is supporting data for the information concerning the Subject Property dated September 4, 2007; therefore, it is not logical that Mr. Hormes did not place in the work file data concerning the comparable sales used in the Original and Amended Appraisals that was obtained contemporaneously with the preparations of the two appraisals on September 4 and 7, 2007. There were numerous corrections to the Original Appraisal in the Amended Appraisal, including zoning, ages of the comparable sales, additional comparable sales, the correct average of the comparable sales, adjustments made to the comparable sales, and changing the view to residential/busy. It is difficult to understand how Mr. Hormes could have sent out the Original Appraisal with so many errors which he did not recognize while preparing the Original Appraisal, particularly with his many years of experience as an appraiser. The error concerning the zoning is an error that even an inexperienced appraiser likely would not make. Mr. Hormes's explanation is that the computer software that he used to check his appraisals was not working properly. His explanation is not credited. It is just as difficult to understand how Mr. Hormes could go through the Original Appraisal in the short span of an afternoon, make all the corrections, and communicate the Amended Appraisal to his client. The inevitable conclusion is that Mr. Hormes did not prepare an Amended Appraisal on the afternoon of September 7, 2007, and that the Amended Appraisal was prepared sometime after Chase notified Mr. Hormes that Chase would no longer consider Mr. Hormes eligible to do appraisals for Chase. Mr. Hormes did not provide the Department with a copy of the Amended Appraisal when the Department requested the entire working file concerning the appraisal at issue. When Mr. Hormes's attorney responded to the Department, he did not mention the Amended Appraisal and did not send the Amended Appraisal to the Department. Mr. Hormes testified that he gave the work file to his assistant and asked the assistant to copy the work file and send it to the Department. He testified that his assistant must have failed to send the Amended Appraisal. Mr. Hormes's testimony is not credited. When Chase made its complaint to the Department, no mention was made of an Amended Appraisal, and no Amended Appraisal was sent to the Department. It is inferred that Chase did not have a copy of the Amended Appraisal. There is a letter dated October 6, 2008, from Mr. Hormes to Mr. Straw concerning the appraisal at issue in the work file, which was provided to the Department by Mr. Hormes's attorney. The letter was not in the Department's files prior to its receipt from Mr. Hormes's attorney. The letter predates the complaint filed by Chase against Mr. Hormes and predates the assignment of the case to Mr. Straw. Assuming, arguendo, that the date was incorrect and the year should have been 2009, the letter rings false because Mr. Straw was no longer investigating the case and Mr. McKinley had been in contact with Mr. Hormes concerning the complaint. It is concluded that Mr. Hormes was doctoring his file to make it appear that he had notified the Department early on that an Amended Appraisal had been prepared. In the Original Appraisal, Mr. Hormes stated that the neighborhood boundary that he used was Nicholas Parkway to the east, Chiquita Boulevard to the west, Embers Parkway to the north, and Southwest 10th Street to the south. The Department claimed that one of the properties used as a comparable sale, 636 Southwest 10th Street, was not located within the neighborhood boundary. The evidence establishes that the property is on the boundary line and is considered to be within the neighborhood boundary lines. Mr. Hormes stated in the Original Appraisal: This appraisal report complies with the Uniform Standards of Professional Appraisal Practice that were adopted and promulgated by the Appraisal Standards Board of The Appraisal Foundation and that were in place at the time this appraisal report was prepared. The Uniform Standards of Professional Appraisal Practice (USPAP) contains the governing standards for appraisers throughout the United States. The following portions of the 2006 USPAP are applicable to the instant case: Ethics Rule-Conduct An appraiser must perform assignments ethically and competently, in accordance with USPAP and any supplemental standards agreed to by the appraiser in accepting the assignment. An appraiser must not engage in criminal conduct. An appraiser must perform assignments with impartiality, objectivity, and independence, and without accommodation of personal interests. * * * An appraiser must not communicate assignment results in a misleading or fraudulent manner. An appraiser must not use or communicate a misleading or fraudulent report or knowingly permit an employee or other person to communicate a misleading or fraudulent report. Ethics Rule-Recordkeeping An appraiser must prepare a workfile for each appraisal, appraisal review, or appraisal consulting assignment. The workfile must include: the name of the client and the identity, by name or type, of any other intended users; true copies of any written reports, documented on any type of media; summaries of any oral reports or testimony, or a transcript of testimony, including the appraiser's signed and dated certification; and all other data, information, and documentation necessary to support the appraiser's opinions and conclusions and to show compliance with this Rule and all other applicable Standards, or references to the location(s) of such documentation.[3/] An appraiser must retain the workfile for a period of a least five (5) years after preparation or at least two (2) years after final disposition of any judicial proceeding in which the appraiser provided testimony related to the assignment, whichever period expires last. An appraiser must have custody of his or her workfile, or make appropriate workfile retention, access, and retrieval arrangements with the party having custody of the workfile. Standards Rule 1-1 In developing a real property appraisal, an appraiser must: be aware of, understand, and correctly employ those recognized methods and techniques that are necessary to produce a credible report. not commit a substantial error or omission or commission that significantly affects an appraisal; and not render appraisal services in a careless or negligent manner, such as by making a series of errors, that although individually might not significantly affect the results of an appraisal, in the aggregate affects the credibility of those results. Standards Rule 1-4(a) In developing a real property appraisal, an appraiser must collect, verify, and analyze all information necessary for credible assignment results. (a) When a sales comparison approach is necessary for credible assignment results, an appraiser must analyze such comparable sales data as are available to indicate a value conclusion. Standards Rule 2-1 Each written or oral property appraisal report must: clearly and accurately set forth the appraisal in a manner that will not be misleading; contain sufficient information to enable the intended users of the appraisal to understand the report properly; Standards Rule 2-4(b)(viii) (b) The content of a Summary Appraisal Report must be consistent with the intended use of the appraisal and, at a minimum: (viii) summarize the information analyzed, the appraisal methods and techniques employed, and the reasoning that supports the analyses, opinions, and conclusions; exclusion of the sales comparison approach, cost approach, or income approach must be explained. The appraisal attached to the Administrative Complaint is designated as 0708-248 org. Dennis Black, who testified as the Department's expert, reviewed Mr. Hormes's appraisal which has a designation of 0708-248. Both appraisals are identical except for the designation and both appraisals constitute the Original Appraisal, which is at issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Hormes violated sections 475.622(1) and 475.624(15) and rule 61J1-7.001(2); finding that Mr. Hormes did not violate sections 475.622(2) and 475.624(2); suspending his license for six years followed by two years of probation; and imposing an administrative fine of $5,000. DONE AND ENTERED this 19th day of May, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 19th day of May, 2011.
Findings Of Fact At all times material hereto, Respondent, Lawrence P. Weiner, was a registered Florida real estate salesman employed by Continental Marketing Services, Inc. Continental Marketing Services, Inc. solicited real property listings from property owners in the State of Florida by means of postal cards inquiring of those property owners whether they would like to sell their Florida real property. Interested owners were requested to fill out a card with their address and telephone number, and to forward that card to Continental Marketing Services, Inc. which would then contact the property openers by telephone, Respondent, as a real estate salesman in the employ of Continental Marketing Services, Inc., would then contact responding property owners from a list furnished him by his employer. Respondent would obtain information by telephone from property owners such as initial purchase price, size and location of the property. Both Respondent and his employer represented to property owners that, should they list their property with Continental Marketing Services, Inc., the property would be advertised in foreign countries where investors existed who were interested in purchasing Florida real estate. In order to list their property with Continental Marketing Services, Inc., property owners were required to pay an "advance fee" for these listings, usually $350, which amount they were told would be used to defray the cost of initial preparation of a directory listing those properties in Florida which were for sale. After obtaining initial background information, Respondent would submit the information to his employer, which, though unclear from the record, would analyze these facts and return to Respondent for transmission to the property owner a suggested sales price. This suggested sales price was usually several times the initial purchase price for the property. For example, one witness at the hearing testified that a lot purchased on April 27, 1967 for $2,640 was ultimately listed with Continental Marketing Services, Inc. at Respondent's suggestion, at a sales price of $7,600. Testimony at the hearing indicated that comparable lots in the same area are presently selling for $4,700. Another witness testified that two lots purchased in 1965 for $2,390, were discussed in 1977 with Respondent who suggested that they be listed at a suggested sales price of $16,600. Finally, still another witness testified that he listed property with Continental Marketing Services, Inc. as a result of his contacts with the Respondent at a purchase price of $5,000 per acre in 1976 for property that he had purchased for $500 an acre in 1964. Those property owners testifying at the hearing who listed their property for sale with Continental Marketing Services, Inc., indicated that they had no further contact with either Respondent or Continental Marketing Services, Inc. after having paid their $350 listing fee. None of these property owners received any offers to purchase their property as a result of its listing with Continental Marketing Services, Inc., and, as of the date of the final hearing in this cause, the property remained unsold. The Respondent testified that his only responsibilities with Continental Marketing Services, Inc. involved contacting those persons on the lists furnished to him, and obtaining their agreement to listing their property with Continental Marketing Services, Inc. Suggested sale prices for particular pieces of property were furnished to Respondent by other employees of Continental Marketing Service, Inc. Respondent further testified that placing of advertisements for properties listed with Continental Marketing Services, Inc. was accomplished by other employees of the company. Respondent testified that he "understood" that Continental Marketing Services, Inc. had sold properties and that some of these sales were to foreign investors, although he did not know the identity of the foreign investors, or the number of parcels sold by the company. Respondent denied that he had represented to property owners that the sale of their property would be accomplished in sixty to ninety days. This contention is borne out by the testimony of two of the property owners testifying in this proceeding, one of whom testified that Respondent indicated that her property could "probably be sold within sixty to ninety days", and another property owner testified that Respondent made no representation to him concerning the length of time necessary to effect a sale of his property. There is no evidence in the record to establish that Continental Marketing Services, Inc. failed to advertise property listed for sale as promised in the Listing Brokerage Agreement with those property owners testifying in this proceeding. There is no evidence in the record in this proceeding to establish that Continental Marketing Services, Inc., in fact, knew of no foreign investors interested in purchasing property in the United States. Further, there is no testimony in the record in this proceeding to establish that Continental Marketing Services, Inc. had never sold property for other property owners in either the United states or the State of Florida. Finally, although property belonging to three of the witnesses testifying in this proceeding was listed at several times its initial purchase price, there is no indication in the record that Respondent played any part in setting the suggested listing prices.
The Issue The issue in this case is whether Respondent failed to execute a written agreement with the owner of property to be auctioned and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a licensed auctioneer, holding license number AU 0000415. Respondent and Danny Mitchell are coworkers at a County mosquito control agency. Mr. Mitchell and his wife Joan were selling their house and moving out of town. Wanting to sell their personal possessions fast, they agreed that Mr. Mitchell would contact Respondent and ask him about conducting an auction. In late March 1993, Respondent visited the Mitchells at their home to view the property to be auctioned. Based on the number and quality of the property available for auction, Respondent realized that the auction would not raise much money. He estimated the value of the property to be auctioned at $1200 to $2000. Respondent did not require the Mitchells to sign a contract right away. Because of the friendship between Mr. Mitchell and Respondent, Respondent allowed the Mitchells to sell or give away items without Respondent's approval prior to the auction, and they sold $525 worth of items in the interim. Even the auction date was left open. The Mitchells did not want the auction to take place until they were closing on the sale of their house. For the next three months, the Mitchells sold and gave away what property they could. Then, without much notice, they told Respondent that they wanted the auction to take place. The Mitchells and Respondent agreed that the auction would take place July 24, 1993. Respondent discussed with Mr. Mitchell the need for advertising, which would come out of the Mitchells' share of the proceeds. The Mitchells agreed on fairly modest advertising. Respondent never obtained a written contract in the days prior to the auction. Although he was in frequent contact with Mr. Mitchell at work, there was some awkwardness in presenting the contract to him because Mr. Mitchell does not read or write. Respondent instead agreed to meet the Mitchells at their house on the morning of the auction, and he intended to present them a contract at that time to sign. Respondent appeared at their house at the agreed-upon time with a contract to be signed. However, he did not insist that they read and sign the contract because, as Respondent arrived, the Mitchells were rushing out of the house to take care of other matters. Consistent with their intent all along, the last instructions that the Mitchells gave Respondent was that he had to sell everything so the new homeowners could get into the house and the Mitchells would not have to move anything. Only about ten bidders appeared for the auction. Bidding was low. Respondent wanted to stop the auction, but had no way to contact the Mitchells, who did not try to contact him that day. Recalling the final instructions about selling everything, Respondent continued with the auction. After about an hour and a half, the auction ended with everything sold. Respondent claims that he received $499.50 in sale proceeds. It is unnecessary to determine whether this testimony should be credited. Respondent did not hear from the Mitchells for two weeks after the auction. One day, Mr. Mitchell returned to work from his vacation and asked for his money. Bringing the money the next day to work, Respondent gave the Mitchells a check for $200 with a settlement sheet itemizing the expenses. Upon the insistence of Mrs. Mitchell for documentation of the auction sales, Respondent later provided the Mitchells with copies of the clerking tickets. The estimated value of the auctioned property exceeded $500.
Recommendation It is RECOMMENDED that the Board of Auctioneers enter a final order reprimanding Respondent. ENTERED on July 28, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on July 28, 1995. COPIES FURNISHED: Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Susan Foster, Executive Director Board of Auctioneers Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Charles F. Tunnicliff, Chief Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Bruce C. Scott 2424 McGregor Boulevard Ft. Myers, FL 33901
