The Issue The issue is whether Respondent committed the offenses alleged by the Administrative Complaint, and, if she did, the penalty that should be imposed.
Findings Of Fact Petitioner is a regulatory agency of the State of Florida charged with the responsibility of investigating and prosecuting complaints against real estate professionals, including licensed real estate salesmen. At all times pertinent to this case, Respondent, America Canizales, was licensed by Petitioner as a real estate salesman. At the time of the hearing, however, Respondent's license was on inactive status. Respondent was the real estate salesman who represented Elvira Martinez when Ms. Martinez bought her apartment in the middle of 1987. As a result of her professional dealings with Ms. Martinez, Respondent learned that Ms. Martinez was interested in investing in real estate. On December 4, 1987, Respondent persuaded Ms. Martinez to enter into a real estate transaction with her. Respondent intended to purchase a house for the sum of $34,000, but she did not have the funds necessary to close the transaction. Respondent needed an additional $5,000 to apply toward the purchase price and to pay the costs of closing. The house was to be purchased by Respondent in her individual capacity in a transaction that was independent of her status as a real estate salesman. The agreement executed by Respondent and Ms. Martinez on December 4, 1987, provided for Ms. Martinez to give to Respondent the sum of $5,000. In exchange for this money, Respondent agreed that she would convey to Ms. Martinez one-half interest in the $34,000 house after she had acquired title to the property. In the event the transaction did net close and Respondent did not obtain title to the house, Respondent was to return to Ms. Martinez the sum of $5,000 without the payment of interest. Between December 4, 1987, and December 8, 1987, Ms. Martinez gave to Respondent a check made payable to America Canizales in the amount of $5,000. This check, dated December 9, 1987, was to be held in trust by Respondent until the closing on the purchase of the $34,000 house. At no time did Respondent deposit the check in a bank account. There was no evidence that Respondent took any action to safeguard Ms. Martinez's check or the funds represented by the check. Although the check was dated December 9, 1987, the check was cashed on December 8, 1987, at the bank used by Ms. Martinez. The person who cashed the check endorsed it in the name of America Canizales. On or about December 10, 1987, Respondent told Ms. Martinez that Respondent's husband had stolen all of Respondent's money and that he had also stolen Ms. Martinez's check. Respondent also told Ms. Martinez that because of the theft, she would be unable to close their contemplated transaction and promised to repay the $5,000. Respondent offered no further explanation or accounting for the funds. Respondent made repeated promises to repay Ms. Martinez the sum of $5,000 on the occasions Ms. Martinez was able to contact her. Thereafter, Respondent moved from the State of Florida without letting Ms. Martinez know where she could be reached. When Ms. Martinez located Respondent in Chicago, Illinois, Respondent again promised to repay Ms. Martinez. As of the time of the formal hearing, Respondent had returned to Dade County, Florida, but she had made no effort to repay Ms. Martinez the sum of $5,000. Respondent repeatedly misled Ms. Martinez as to her intentions to repay her. The factual allegations of the Administrative Complaint filed by Petitioner to "initiate this case were denied by Respondent. The request for a formal hearing was timely filed by Respondent.
Recommendation Based on the foregoing Findings of `Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a final order which finds that Respondent violated Section 475.25(1)(b), Florida Statutes, as alleged in Count I of the Administrative Complaint. It is further recommended that the final order revoke the real estate salesman's license issued to Respondent, America Canizales. DONE and ORDERED this 30th day of January, 1990, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1990. COPIES FURNISHED: John R. Alexander, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 America Canizales 158 West 10th Street Hialeah, Florida 33010 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Darlene Keller, Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue The issue presented for decision herein is whether or not Respondent's real estate salesman's license should be disciplined because he engaged in acts and/or conduct amounting to fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust and for failure to account and deliver monies entrusted to him while acting as a salesman in violation of Section 475.25(1)(b) and (d), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received including a review of the entire record compiled herein, I hereby make the following relevant factual findings. During times material herein, Respondent was, and is, a licensed real estate salesman in Florida and has been issued license number 0128100. (Petitioner's Exhibit 1) Augustin Leon Padron is a resident of Caracas, Venezuela and is a part- time resident of Miami, Florida. During 1978, Leon was interested in purchasing property in the Miami area so he contacted a distant cousin, the Respondent, to help in the acquisition and management of any property be purchased. On November 9, 1978, Leon executed a power of attorney appointing the Respondent as his attorney-in-fact in regard to the acquisition and management of properties that Leon may purchase. (Petitioner's Exhibit 5) On November 17, 1978, Leon wired to the Pespondent $20,000 to be held for the acquisition of property by Leon. (Petitioner's Exhibit 6) On August 31, 1979, Leon, through the assistance of Respondent, purchased a duplex located at 43-45 NW 44 Avenue, Miami, Florida. Of the $20,000 sent to Respondent by Leon, $17,194.35 was used for the purchase of the duplex, leaving a balance of $2,805.65. (Petitioner's Exhibits 4 and 6) The balance of $2,805.65 was never accounted for by Respondent or delivered to Leon. Pursuant to the power of attorney, Respondent assumed the duties of manager of the duplex for Leon, which duties included the collection of rent, making repairs and the payment of the monthly mortgage to Atlantic Federal Savings and Loan Association in Ft. Lauderdale, Florida. On or about April 1, 1981, Leon gave a $10,000 check to the Respondent for the purpose of making certain repairs and additions to the duplex. (Petitioner's Exhibit 7) Respondent never made repairs or additions as requested and has failed to account for or deliver, to the present time, any of the $10,000, although demands have been made by Leon for the return of the money. On or about May 24, 1981, Leon issued two checks, each in the amount of $10,000. One check was issued to Arango and Galarraga, a law firm, as a deposit towards the purchase of the Kasbah Bar. The second check was issued to the Respondent to he used as a deposit on the purchase of property in Kendall. (Petitioner's Exhibit 8) Both of the above-referred transactions bailed to materialize. On July 7, 1981, the law firm of Arango and Galarraga issued a check payable to Leon in the amount of $10,000 representing a return of the deposit. (Petitioner's Exhibit 9) This check was tendered to the Respondent. Respondent took this check plus the $10,000 deposit as to the Kendall property and had a $20,000 certified check drawn and made payable to Leon. (Petitioner's Exhibit 10) On November 19, 1981, at Leon's request, Respondent issued a check to Leon in the amount of $10,000 representing a part payment of monies owed to Leon by Respondent. (Petitioner's Exhibit 11) Leon attempted to cash this check hut was told that there were insufficient funds in the Respondent's bank account to cover such an amount. (Petitioner's Exhibit 12) Leon has made numerous demands upon Respondent for the payment of the $10,000 but Respondent has failed to pay over to Leon the $10,000 or to make good on the check he issued. During 1980 and 1981, Respondent failed to make at least five (5) mortgage payments causing the mortgage loan on the duplex, referred to above, with Atlantic Federal Savings and Loan Association to become delinquent and foreclosure proceedings were instituted. (Petitioner's Exhibit 3) The evidence is undisputed that Atlantic Federal notified Respondent on at least two occasions that the loan was delinquent and, if not brought current, foreclosure proceedings would result. (Petitioner's Exhibits 15, 16, 17, and Respondent's Exhibit 1) Respondent failed to advise of the nonpayment of the mortgage and the impending foreclosure. Additionally, at no time did Respondent advise Leon that be did not have sufficient funds to make the mortgage payment as scheduled. On November 19, 1981, Leon discovered through the public records of Dade County and Atlantic Federal, that his duplex was about to be foreclosed. Leon brought the mortgage payments current and paid the attorneys fees and costs involved amounting to $5,281.47. (Petitioner's Exhibit 13) Based on the above-referred events, Leon revoked the Respondent's power of attorney effective that day, November 19, 1981. (Petitioner's Exhibit 14) Subsequent to November 19, 1981, Leon attempted to work out arrangements whereby Respondent would repay to Leon all monies owed by Respondent to Leon. These attempts failed and Leon filed suit against Respondent in Dade County Circuit Court for $26,065. On July 24, 1992, Leon secured a final judgment against Respondent for the amount requested, i.e., $26,065 plus interest and costs. (Petitioner's Exhibit 2) To this day, Respondent has failed and refused to satisfy the judgment and Leon has been unsuccessful in his attempted collection on that judgment. Respondent contends that the $10,000 check that gas issued him by Leon was for the payment of services performed on behalf of the Respondent. Evidence in that regard reveals that Respondent was not charging Leon a commission on any real estate transactions. A review of Respondent's testimony herein reveals that in addition to the acquisition and management of the duplex referred to herein which is located at 43-45 NW 44 Avenue in Miami, Respondent only picked up and forwarded goods and merchandise to Respondent in Caracas, Venezuela which had either been purchased by or shipped to Respondent from New York and other places. Apart from the time involved in the reshipping of those goods and merchandise, Respondent only paid nominal shipping charges. It is true that Respondent attempted to negotiate for the sale and purchase of the Kasbah Bar for Leon; however, his efforts in that regard were unsuccessful. Based on all of the evidence herein, including the testimony of Leon and the documentary evidence received, Respondent's contention that Leon owed him in excess of $10,000 is not credible and is rejected. This is especially so in view of the fact that Respondent issued a check in the amount of $10,000 to Leon which was returned for insufficient funds. For all these reasons, Respondent's testimony is incredible and is rejected in those instances wherein it differs from the version offered by the deposition testimony of Augustin Leon Padron.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondent, Ignacio Dulzaides', license as a real estate salesman (number 0128100) be revoked. DONE and ORDER of this 11th day March, 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1985.
The Issue Whether respondent's license as a real estate salesman should be revoked or otherwise disciplined on the ground that she is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, culpable negligence, and breach of trust in a business transaction in violation of Section 475.25(1) (b), Florida Statutes (1979).
Findings Of Fact At all times material to the charges, respondent Margaret Perry was a licensed Florida real estate salesman holding license No. 0147966. Her business address is Key Place Realty, 513 West Vine Street, Kissimmee, Florida. (Stipulation of Parties.) I. The Offer On December 12 and 13, 1980, Perry W. Ripple, Jr., and Carol C. Ripple, his wife, signed a contract to purchase a 5-acre tract, with residence, located on Hickory Tree Road, Osceola County, Florida. The contract was prepared by respondent, who had previously shown the property to the Ripples. (Testimony of Perry, P. Ripple, C. Ripple; Joint Exhibit No. 1.) On Saturday, December 13, 1980, the contract constituted only a written offer to purchase the property since Novie P. Cleveland and Pamela A. Cleveland- -the owners of the property--had not yet accepted the offer by signing the contract. Pursuant to the contract, the offer was accompanied by a $1,000 earnest money deposit and an assignment of a certificate of deposit. (Testimony of P. Ripple, Perry.) On Saturday, December 13, 1980, when respondent received the signed offer, with earnest money deposit and certificate of deposit assignment, she mailed a copy to the American Title Insurance Company and ordered title insurance. Before mailing the contract offer to the title insurance company, she typed two dates above the contract signature lines: "December 13, 1980" as the date it was signed by the buyers; 3/ and "December 15, 1980" as the date it would be signed by the sellers (the sellers had not yet signed the contract; she inserted December 15, 1980, in anticipation of their signing on that date). She used December 15, 1980, because, under the terms of the contract, that was the last day the offer could be accepted by the sellers. (Testimony of Perry, Carlyon; P-1.) II. The Acceptance At approximately 6:00 p.m. on Sunday, December 14, 1980, respondent telephoned the sellers, Novie P. and Pamela A. Cleveland, and arranged for them to meet her at Mr. Cleveland's office and accept the offer by signing the contract. Respondent expedited the signing of the contract because the Ripples were in a hurry to close the transaction. (Testimony of N. Cleveland, P. Cleveland, Perry.) A few minutes later, the Clevelands met respondent at the designated place and signed the contract. Although they signed the contract on December 14, 1980, respondent inadvertently failed to correct the December 15, 1980, date which she had earlier placed in the contract as the date of execution by the sellers. (Testimony of Perry, N. Cleveland, P. Cleveland; Joint Exhibit No. 1.) III. Buyers' Attempt to Withdraw Offer Later on that evening--between 8:00 p.m. and 9:00 p.m. on December 14, 1980--Mr. Ripple telephoned respondent at her home. He questioned her about the boundaries and size of the property and, for reasons not material here, told her that he no longer wanted to buy the property, that he wanted the earnest money deposit returned. The conversation was abrupt and heated; both parties became upset with each other. The subject of whether the contract had been accepted and signed by the sellers was not mentioned. (Testimony of Perry, C. Ripple, P. Ripple.) The critical dispute in this case is the time of Mr. Ripple's telephone call to respondent. The Ripples testified it was between 5 p.m. and 6 p.m.; respondent testified it was between 8 p.m. and 9 p.m. If the Ripples' testimony is accepted, then respondent presented an offer to the sellers for acceptance after the buyers had told her they wanted to withdraw the offer and not proceed with the contract; this is the essence of respondent's alleged misconduct. If respondent's testimony is accepted, the buyers did not notify her that they wanted to withdraw their offer until after the offer was accepted by the sellers; under such circumstances, her conduct was clearly proper. Respondent's testimony on the timing of the Ripples' telephone call is accepted as persuasive; (see paragraph 7 above) the Ripples' testimony concerning the time of the call is rejected. In earlier testimony, Mr. Ripple's memory of the events in question was shown to be unreliable: [Respondent's Counsel] Q: You say you signed the contract on December the 13th, on a Saturday. [Mr. Ripple] A: Yes. Q: Isn't it true that you signed the contract at the Sun Bank in St. Cloud on Friday, December 12th, on the hood of your car or Marge's car? That's possible, yes. Q: So you were mistaken when you said you signed it on Saturday. A: Yes, I was. I probably was. (Tr. 23.) More importantly, if the Ripples' testimony is correct, respondent deliberately presented an offer for acceptance which the purchasers no longer wished to make. Assuming such conduct occurred, it is inconceivable that she would inadvertently fail to correct the date on the contract to indicate that the sellers signed on December 14, 1980 (the same day the Ripples attempted to withdraw), not December 15, 1980. The events occurred close together and timing was critical. By not changing the date, she allowed the contract to incorrectly reflect that the sellers signed the contract a day later than they actually did: the time between the buyers' attempt to withdraw and the sellers' acceptance becomes greater than it was and even more difficult for her to explain. In short, her failure to correct the date of the sellers' signing of the contract is not a mistake she would have made if, as the Department alleges, she knowingly presented an offer and completed a contract against the expressed wishes of the buyers. IV. No Damage to Parties Involved On Monday, December 15, 1980, the Ripples stopped payment on their earnest money deposit check. The sellers did not pursue any legal rights or remedies they may have had against the Ripples. Eventually, the property in question was sold to another party. There is no evidence that the Ripples or Clevelands were financially harmed as a result of the events in question. (Testimony of Perry, C. Ripple, P. Ripple, N. Cleveland.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department's administrative complaint dated October 20, 1981, be dismissed. DONE AND RECOMMENDED this 26th day of March, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. 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 26th day of March, 1982.
Findings Of Fact The Respondent A. G. Ennis Realty, Inc. is a corporate real estate broker having been issued license number 0133016. The Respondent Thomas E. Ennis is the licensed real estate broker of record for A. G. Ennis Realty, Inc., and he holds broker's license number 0025105. The Respondent Marshall J. Hungerford is a licensed real estate salesman who has been issued license number 0042181. The Respondent Mildred B. Hardin is a licensed real estate salesman holding license number 0130139. In February, 1980, the Respondent Mildred Hardin commenced negotiations with Henry Roehr for the purchase of a lot on which he wished to build a condominium. During these negotiations, the Respondent Marshall Hungerford had deposits from ten parties for units in a condominium to be constructed. These parties wanted to live together, but they did not want to go into the particular location where the condominium was to be built because it was across the street from a public boat ramp. Negotiations on this first lot began to lag, because the owners were in Europe. The Respondent Mildred Hardin suggested that Henry Roehr purchase another lot for his proposed condominium. By letter dated March 18, 1980, Mildred Hardin forwarded a proposed contract for the purchase of Lot 35, Block 357, Unit II Replat, Marco Beach Subdivision. In this letter, the Respondent Mildred Hardin reminded Henry Roehr to keep her informed of what was happening so that Marshall Hungerford could tell his prospective buyers something. The terms of the contract for the purchase of Lot 35, generally, called for Henry Roehr to deposit $38,000 as earnest money against a selling price of $360,000. Mr. Roehr made the required deposit by check to the Respondent A.G. Ennis Realty, Inc., to be held in escrow. After Henry Roehr received assurances from the Respondent Mildred Hardin that the ten persons who had given deposit checks to Marshall Hungerford would purchase condominium units on Lot 35, Henry Roehr by letter dated April 7, 1980, authorized the Respondent Mildred Hardin to release to the seller the signed contract and check for the purchase of Lot 35. In this letter he stated that the only reason he was purchasing the lot was because of the representations that had been made to him that Marshall Hungerford had ten firm purchasers for condominium units. Before this transaction closed, the Respondent Marshall Hungerford accompanied Henry Roehr to two banking institutions for the purpose of obtaining a construction loan for the condominium units. During these visits, the Respondent Marshall Hungerford represented to the banking institutions that he had ten firm purchasers for units in the proposed condominium. The transaction closed on July 13, 1980. When Henry Roehr began to request more information about the prospective buyers of condominium units, the Respondent Marshall J. Hungerford, by letter dated July 29, 1980, forwarded to Henry Roehr the names and addresses of ten individuals who were represented to "have deposited checks with us and have expressed a desire to purchase a condominium, as proposed for the above reference project". In this letter he further stated, "its my personal opinion knowing all of these people that they are certified buyers and are interested and capable of entering into a purchase contract". When the Respondents presented no contracts for the purchase of condominium units from any of the people who were represented to be buyers, Henry Roehr suspected that he had been deceived, and tried to sell some of the condominium units himself. However, when the combined efforts of Henry Roehr and the Respondents failed to pre-sell enough units to warrant construction of a condominium, the plan to build was abandoned. The representations made by the Respondents, Marshall Hungerford and Mildred Hardin, that they had deposits from ten buyers for condominiums were false. These representations were made while they were salesmen employed by the Respondents, A.G. Ennis Realty, Inc., and the broker for A.G. Ennis Realty, Inc., Thomas Ennis. Thomas Ennis was aware of the transaction and participated in it as a broker, and collected a commission on it. Henry Roehr purchased Lot 35 in reliance upon these false representations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the licenses of the Respondents, Thomas E. Ennis, Marshall J. Hungerford, Mildred B. Hardin, and A.G. Ennis Realty, Inc., be revoked. THIS RECOMMENDED ORDER ENTERED this 6th day of May, 1983, in Tallahassee, Florida. William B. Thomas 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 6th day of May, 1983. COPIES FURNISHED: Fred Langford, Esquire Post Office Box 1900 Orlando, Florida 32802 Thomas E. Ennis A.G. Ennis Realty, Inc. 821 South Barfield Drive Marco Island, Florida 33937 Marshall J. Hungerford Post Office Box 432 Marco Island, Florida 33937 Mildred B. Hardin Post Office Box 121 Georgetown, Florida 32039 William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802 Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The facts here involved are undisputed. At all times here relevant Leroy Herron, Respondent, was registered with the Florida Real Estate Commission as a broker and active firm member of Chase Realty, Inc. Chase Realty, Inc. was a corporate broker, one hundred percent of whose stock was owned by Carl F. German, a non-registrant. At and prior to August 1977, Respondent Herron was employed at the Ramada Inn at Lake Worth as bartender. He had received his real estate broker's registration two or three years before, but had never actively participated in a real estate office or sold real estate. Carl F. German, a former comptroller for the business owning Ramada Inn, came into the Ramada Inn several times per month and during a conversation with Herron learned that Herron was a registered broker. German said he was in need of a broker and asked if Herron was interested. The conversation was general and no specific employment agreement was reached. Although German had Herron registered with the Petitioner as active firm member of Chase Realty, Inc., Herron was assigned no duties, provided with no office space or was ever invited to come to the office. German explained the firm's business at this time did not involve real estate sales and that he had Herron available in case a deal came up involving a real estate transaction. In August 1977 German brokered a deal to sell a liquor lounge known as Crazy Jim's to one Sheridan, who gave German a $5000 deposit on the transaction. Herron had no involvement in this deal and was totally unaware of it until Sheridan contacted him after he had, been unable to get his deposit back from German. The Deposit Receipt and Contract for Sale and Purchase (Exhibit 2) was prepared by the attorney for the seller and stated "This represents the purchase and sale of personal property only and the lease of the real estate." The contract provided for a commission of $5000 to Chase Realty, Inc. or one-half of the deposit in case the buyer forfeited. The $5000 down payment was deposited by German in an account of Chase Realty, Inc. on which German was the only authorized signature. When the transaction failed to close and the buyer demanded return of his deposit, German refused to return the deposit. A complaint by the buyer to the Petitioner led to the investigation and the charges here involved. German contends that the transaction was for the sale of a business only and that he was not involved with the lease recited in Exhibit 2, as that was between the buyer and the lessor. German readily acknowledged that he had made no specific arrangements with Herron to perform the functions of an active firm member broker but insisted that at this time the company was not engaged in any real estate transactions and that he had no need for a registrant. Upon being advised that he had been registered as active firm member of Chase Realty, Inc. Herron had his certificate removed from the Chase Realty Office and presumably placed his registration in an inactive status. He cooperated fully with the investigator for Petitioner and with the buyer regarding the return of the buyer's deposit. Carl F. German was tried on criminal charges resulting from the transaction leading to the charges preferred against Herron. Those criminal charges against German involved acting as a real estate broker without a license. The business card German showed to Herron had the name Carl F. German, President, Chase Realty, Inc. (address) Real Estate Brokers. Herron was not aware that German was not a registered real estate broker or that Herron was to be registered as the active broker of Chase Realty, Inc. when he agreed to have his license registered with Chase Realty, Inc.
Findings Of Fact Respondent is a licensed real estate salesman. He has held Florida license number 0046313 at all times relevant to these proceedings. On February 2, 1979, in the Circuit Court of the Fifteenth Judicial Circuit (Florida), Respondent was adjudicated guilty on three counts of failure to register as a securities salesman and three counts of failure to register securities, under Sections 517.03, 517.07, 517.12 and 517.302, F.S. (1973). He was sentenced to five years imprisonment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 18th day of February, 1982, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1982.
The Issue The central issue is whether Bennett committed the violations as alleged and, if so, what discipline is appropriate. More specifically, did he violate Section 475.25(1)(b), (d) and (k), Florida Statutes, by committing fraud, culpable negligence or the like, by failing to account for and deliver trust funds, and by failing to properly maintain trust funds?
Findings Of Fact Respondent, Fred M. Bennett was, at all times relevant, licensed as a real estate broker in the State of Florida, having been issued license number 0161968 in accordance with Chapter 475, Florida Statutes. Harold E. McNally is a self-employed businessman from Chillicothe, Ohio. He met Fred Bennett in 1976 or 1977 when he bought some property in Orlando. Thereafter, the relationship continued with McNally buying and selling property as an investment, and Bennett acting as agent or purchaser. Four of McNally's properties in Orlando, Florida were held as rentals: 3939 Spoonbill Avenue 4525 Salvia Drive 7806 Toledo Street 1308 Forester Avenue Bennett collected the rents and sent them to McNally, after deducting his management fee. There was no written management agreement, but rather McNally leased the properties back to Bennett. Later, those leases expired and since the market was not good for sales, Bennett and McNally continued their relationships with Bennett sending the rents and deducting his fees. The rents were $450.00 and $485.00 per month and his fee was $93.00 per month in 1986. The rents remained the same in 1987, but the management fee was raised to $103.00 per month. Beginning in May 1986, the rents were not sent to McNally on a regular basis. McNally attempted to contact Bennett but was unsuccessful. By July 1987, Bennett owed McNally $11,169.00 for back rents and a $400.00 deposit on one of the houses. After McNally retained counsel and sent a letter informing Bennett that he was terminating the management arrangement, Bennett eventually returned the keys and (with the exception of one which he had applied to rent) transferred the tenants' deposits to McNally's new agent. Bennett attempted to account for the back rents with promissory notes. McNally never acknowledged the notes and filed them. The $11,169.00 was never paid. James D. Stayton is another real estate investor who dealt with Bennett. He had two properties which Bennett handled for him. Between September 20, 1984, when he acquired the property, and October 1986, when he removed the property from Bennett's control, Stayton was owed $7,447.44 in back rents. Again, Bennett signed a promissory note in this amount, but never paid on the note. Bennett admits that he owes the funds but denies fraud or dishonesty and claims that his failure to pay the rents was the result of a business deal that went bad. Bennett Does not claim that the rents were not collected. One tenant, Patricia Sulter established that she lived in the 4525 Salvia Drive unit and paid her deposit and rents regularly to Bennett during the months when Bennett failed to forward the funds as agreed, to Harold E. McNally.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Fred M. Bennett guilty of violations of Section 475.25(1)(b) and (d), Florida Statutes, imposing a $4,000.00 fine and suspending his license for four years. DONE and ENTERED this 31st day of March, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 31st day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4903 The following constitute specific rulings on each of the findings of fact proposed by the Petitioner: Adopted in paragraph :1. Adopted in paragraph #3. Rejected as unsupported by the evidence. & 5. Adopted in paragraph #5. Adopted in paragraph 6, except for the finding that the funds were converted to Bennett's own use, which finding was not proven. Adopted in paragraph #6. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation - Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred M. Bennett Post Office Box 3102 Orlando, Florida 32802 Darlene Keller, Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802
The Issue Whether the license of the Respondents should be suspended or the Respondents should be otherwise disciplined for false advertising and misrepresentations in a real estate transaction.
Findings Of Fact Robert T. Gabor holds License #0029823 as a registered real estate broker and trades as Gabor Realty. Frances Gabor holds License #0029822, is the wife of Respondent Robert T. Gabor, and is associated with him as a real estate salesperson. An administrative complaint filed October 5, 1978, by the Petitioner, Florida Real Estate Commission, alleged that the Respondents were guilty of false advertising and misrepresentation in a real estate transaction. The Respondents requested an administrative hearing. On or about February 26, 1978, the Respondents placed an advertisement in the Sentinel Star in Orlando, Florida, advertising a home for sale as follows: BRANTLEY area FHA VA $26,500. * BUY OWNER * 3/4 ACRE * Immaculate 3 bdrm carpet 894-5828 A couple, Mr. and Mrs. Reese, called the telephone number indicated in said advertisement and went to see the home but decided against buying it. Thereafter, the Respondents placed a different advertisement in the newspaper: BRANTLEY 894-5828 BY OWNER * 3/4 ACRE * FHA * $800. DN $25,000. mtg. 30 yrs $228/mo pays all, 3 bdrm, 1 1/2 bath, 7 yr young. There was no indication in either of the foregoing advertisements for the sale of the house that the owners was real estate salespersons. The advertisements gave the home telephone number of the Respondents, although the Respondents had a real estate office in Orlando known as Gabor Realty which was listed under a different telephone number. The Reese couple read the second advertisement on the same property and again became interested in it. They met the Respondents at the house, viewed the house, and talked with the Respondents. The Reeses and the Respondents then went to a nearby restaurant where a standard contract form was completed and signed while they were seated in the restaurant. Mr. and Mrs. Reese noted at the time the contract was signed that Respondent Robert Gabor signed it as a realtor and Respondent Frances Gabor signed it as a realtor associate. The Reeses were surprised because they had not known they were dealing with real estate salespersons. In spite of their surprise, Mr. and Mrs. Reese did not terminate the negotiations but proceeded to try to work out arrangements so they could buy the house. The contract was contingent upon the buyers' ability to secure a $25,000 FHA mortgage for thirty (30) years. The sellers were to pay the points, and the closing costs were to be divided equally. At the time of the hearing there was an unresolved dispute as to what the closing costs had been orally estimated to be. On or about March 31, 1978, Mr. and Mrs. Reese gave the Respondent, Robert Gabor, an earnest money deposit of $400.00 which was placed in the Respondent's escrow account. The Reeses and the Respondents signed various documents, including the buyer's estimated closing statement and seller's estimated closing statement. One (1) day prior to the scheduled closing date, May 5, 1978, Respondents learned that the transaction might not be closed because of the Reeses' dissatisfaction with the amounts of the downpayment, closing costs and monthly payments, all of which were in excess of the amounts they had first seen advertised and felt they could pay. Mr. Reese attended the closing on the scheduled day, but refused to close and demanded the return of the $400.00 deposit. The Respondents attempted to make an adjustment and offered to amend the agreement whereby the Respondents would pay all closing costs "allowed by law" for them to pay. Upon the refusal by Mr. Reese to close, the Respondents refused to return the $400.00 deposit. Mr. Reese then informed the Respondents that he would file a complaint with the Florida Real Estate Commission. The Respondents, having proceeded to and attended the closing, felt justified in removing the $400.00 earnest deposit from the escrow account and placing it in the personal account of Respondent Robert Gabor. Respondent Frances Gabor accompanied Respondent Robert Gabor during the foregoing transactions but took no active part in the negotiations other than having been present and having signed documents. Mr. and Mrs. Reese knew or should have known that the costs of the home were in excess of the amounts indicated in the advertisements. They had both signed and received written documents indicating costs well in advance of the scheduled closing date. Respondents submitted a memorandum of law on June 6, 1979, and thereafter, on June 25, 1979, moved to dismiss the cause for failure by the Petitioner Commission to submit memorandum of law as requested by the Hearing Examiner. The Motion to Dismiss was denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends dismissal of the charges against Respondent Robert T. Gabor and Respondent Frances Gabor. DONE and ORDERED this 6th day of July, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Fred Langford, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Royce D. Pipkins, Esquire 292 Highway 17 - 92 Post Office Drawer 965 Fern Park, Florida 32730
The Issue Whether Respondents are guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes, as alleged in the Administrative Complaint.
Findings Of Fact Petitioner is the agency of the State of Florida charged with the responsibility of regulating the practice of real estate pursuant to the provisions of Chapter 475, Florida Statutes, and other pertinent provisions of law and rules. Respondent, Francis Walid Jacob, is a duly-licensed real estate broker having been issued license number 0569854. Respondent, Renters Paradise Realty, Inc., is a duly- licensed real estate brokerage company, having been issued license number 0269583. At all times pertinent to this proceeding, Respondent Jacob was the qualifying broker for the corporate Respondent. At all times pertinent to this proceeding, Philip Jay Slewett was a licensed real estate salesperson employed by the corporate Respondent. Mr. Slewett's license number was 0614888. Related Management Services, Inc. (RMS), was, at all times pertinent to this proceeding, a real estate management company. Intercoastal Towers, an apartment complex, was one of the properties managed by RMS. At all times pertinent to this proceeding, Bruce Terwilliger was the managing Vice President of RMS. At all times pertinent to this proceeding, RMS had a practice of paying commissions to real estate professionals who referred tenants to Intercoastal Towers. The practice required that the real estate professional visit the apartment complex with a client and that the client subsequently lease an apartment at Intercoastal Towers. RMS became suspicious that certain real estate professionals had submitted invoices for clients that they had not referred to the Galahads Apartments, another apartment complex managed by RMS. Because the leasing director at the Galahads had previously been the leasing director for Intercoastal Towers, Mr. Terwilliger investigated whether his company had paid for falsified invoices at the Galahads and at Intercoastal Towers. During his investigation, Mr. Terwilliger reviewed all billings from real estate professionals for commissions based on referrals to Intercoastal Towers, and he interviewed residents to determine whether the billing real estate professional had referred the tenant. Signed statements, including affidavits, were collected during the course of Mr. Terwilliger's investigation, and an investigation by the Miami-Dade Police Department. Based primarily on what Mr. Terwilliger was told by the various residents, he concluded that RMS had paid commissions to the Respondent corporation based on invoices for professional services that had not been rendered. Respondents and the salespersons who generated the billing for a commission split the commission. Mr. Terwilliger met with Respondent Jacob about these invoices. Afterwards, Respondent Jacob had his company reimburse RMS for the invoices at issue in this proceeding. Phillip Slewett was a real estate salesperson employed by the Respondent corporation at the times pertinent to this proceeding. Mr. Slewett admitted that he and another real estate salesperson employed by the Respondent corporation generated the falsified invoices to RMS. Mr. Slewett also implicated two employees of RMS in this billing scam. The evidence did not establish that Respndent Jacob or the Respondent corporation knew or should have known that the invoices generated by Mr. Slewett and the other salesperson were false.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint against both Respondents. DONE AND ENTERED this 2nd day of November, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 November, 1999.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against respondent, Robert K. Hunter, be DISMISSED with prejudice. DONE and ENTERED this 13th day of June, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 13th day of June, 1984. COPIES FURNISHED: Robert W. Lee, Esquire Post Office Box 1900 Orlando, Florida 32802 Lacy Mahon, Jr., Esquire 350 East Adams St. Jacksonville, Florida 32202
