Findings Of Fact James W. Collins was first licensed in Florida as a real estate salesman in 1978 and has been continuously so licensed since that time. At all times relevant hereto, he was licensed as a real estate salesman. On January 14, 1983, Respondent pleaded nolo contendere to three counts of grand theft, adjudication of guilt was withheld and he was placed on probation for five years. Conditions of probation included residing in the Department of Corrections for 300 days and making restitution. On January 14, 1983, Respondent Pleaded nolo contendere: to uttering a forged instrument (using a stolen credit card), adjudication of guilt was withheld and he was placed on five years probation to run concurrently with the probation noted in Finding 2. On January 14, 1983, Respondent pleaded nolo contendere to five counts of forgery, involving the same stolen credit cards in 3 above, adjudication of guilt was withheld and he was sentenced to the same five years probation and conditions of probation as in 2 and 3 above. In an application for licensure as a real estate broker sworn to on June 20, 1984, Respondent answered question 8, which asks if applicant has ever been arrested or charged with the commission of an offense, "No." In the addendum to this application which also contains the signature of Respondent, he answered the rephrased question 8, "No."
Findings Of Fact During all times material to the Complaint Respondent Genaro O. DiDiego was licensed as a real estate broker under Chapter 475, Florida Statutes. From May 1, 1976 until February 7, 1977, Mr. DiDiego did business under the trade name "Lauderdale Realty" in the Miami Beach Area. In the spring of 1976 Ms. Arlene Channing through a salesman, Anita Kandel, employed by Lauderdale Realty met the Respondent. Ms. Channing was naive about the real estate business and any related transactions. After their initial meeting the Respondent attempted to interest Ms. Channing in a variety of business ventures. Eventually she became involved in two. One was the Choice Chemical Company loan and the other was the Qualk Building purchase. On May 10, 1976, Ms. Channing loaned Mr. DiDiego $30,000.00 for his purchase of stock in the Choice Chemical Company. This loan was to be secured by a note and mortgage from Mr. DiDiego to Ms. Channing in the principal sum of $30,000.00 with interest at 10 percent until the principal was paid. The note and mortgage were due and payable within 18 months. Specifically, the security was 50 percent of the outstanding stock of Choice Chemical Corporation and also Lauderdale Realty's lots and telephone land operation. The security was to be held in escrow by Gerald S. Berkell, who at that time was counsel to Mr. DiDiego. In fact no such security was ever delivered into escrow. From the facts and circumstances of the transactions between Ms. Channing and Mr. DiDiego, it is found that Mr. DiDiego never intended to secure the $30,000.00 loan. That security was a material inducement to Ms. Channing for the loan. The principal sum of the loan, $30,000.00, was deposited into the account of Lauderdale Realty, account number 60-943-7 at County National Bank of North Miami Beach. Subsequently on April 18, 1978, Ms. Channing filed an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, against Mr. DiDiego for the unlawful conversion of her $30,000.00. On June 19, 1978, a final judgement by default was entered against Mr. DiDiego in the amount of $30,000.00 plus legal interest. The Qualk Building purchase concerned a building represented to Ms. Channing to cost $700,000.00. Mr. DiDiego induced her to invest $150,000.00 in the purchase of the Qualk Building. To effect the purchase, Mr. DiDiego and Ms. Channing entered into a limited partnership agreement in which Mr. DiDiego would be the general partner, investing $1,000.00 and Ms. Channing would be a limited partner, investing $150,000.00. Subsequently Ms. Channing deposited $150,000.00 into the Lauderdale Realty escrow account. Her check dated June 18, 1976, in the amount of $150,000.00 was deposited in Account number 60-944-8 for Lauderdale Realty. In fact, the total purchase price for the Qualk building was $585,000.00. The building was however encumbered by first and second mortgages totaling $535,855.90. The total amount therefore required to close was less than $33,000.00. These facts were known to Respondent but were not disclosed to Ms. Channing. From the facts and circumstances of this transaction, it is found that the facts were misrepresented to Ms. Channing for the purpose of inducing her to part with her $150,000.00. Ms. Channing never received any accounting for her investment and she subsequently brought an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. On July 8, 1977, final judgment was entered against Respondent, Genaro O. DiDiego in the amount of $150,000.00 less $32,662.84, which were actually applied to the purchase price of the Qualk building, and less $9,780.00 which represents a portion of the income of the Qualk Building paid by Respondent to Ms. Channing. In entering its final judgment, the Court found that Respondent breached His fiduciary duty to Ms. Channing. This judgment has never been satisfied.
Recommendation In light of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the license of Genaro O. DiDiego as a real estate broker be revoked by the Board of Real Estate, Department of Professional Regulation. DONE and RECOMMENDED this 3rd day of November, 1980, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1980. COPIES FURNISHED: Tina Hipple, Esquire Staff Attorney Department of Professional Regulation 2009 Apalachee parkway Tallahassee, Florida 32301 C. B. Stafford Board Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Genaro O. DiDiego 3745 N.E. 171st Street North Miami Beach, Florida 33160
Findings Of Fact At all times pertinent to the issues involved in this hearing, Respondent, Stephen P. McCrady, was licensed by the State of Florida as a registered real estate broker. Prior to the month of August 1983, Abraham L. Starr and John W. Dowler had listed their real property located at 1425 East Lake Drive, in Ft. Lauderdale, for sale with Sophist Realty, a Ft. Lauderdale real estate brokerage firm in which the two principal brokers were John J. Makos, III and W. Thomas Pospeshil. The asking price for the residential property was approximately $925,000.00. Prior to the time in issue here, no offers to purchase the property had been made as long as it was listed with Sophist Realty. In late July or early August 1983, Respondent was approached by LaVern McDonald and a woman identified as Georgia Rhea, his fiancee, who indicated they were interested in buying residential property in the Ft. Lauderdale area. Respondent showed these individuals several pieces of property including that in issue here. During the course of the relationship with Respondent, McDonald had advised him that he was a wealthy man who was expecting considerable sums of money from his mother's estate in Germany. Respondent believed this story considering it credible. After Respondent had taken the prospects to the Starr property three times, McDonald finally indicated he was interested in making an offer to purchase it. Thereafter, Respondent drew up a rough contract containing the basic terms for an original offer of approximately $775,000.00, typing the draft of the contract himself in his office on the evening of August 8, 1983. When he asked McDonald how much he was willing to put down as a binder, McDonald indicated $20,000.00 and Respondent entered that amount on the sales contract as the deposit. When he asked McDonald for a check to cover this sum, McDonald advised him that the money had to come through a bank in Atlanta and that he would have it there in less than 24 hours. At that point, Respondent called Makes and told him that he had an individual who wanted to make an offer on the property but that the deposit money was not in hand yet. As a result, he did not take the contract to Mr. Makos then or, for that matter, on the next morning because the money had still not arrived. In the interim, Mr. Makos' secretary called Mr. Starr on the evening of August 8, and advised him that an offer would be presented at 1 p.m. the next day. Mr. Starr and his partner were somewhat concerned as to why the offer was not presented immediately when the contract was signed by the prospective purchaser. When they checked with Makes office on the morning of August 9, they were told by Makos that he was waiting for a $20,000.00 check, which was to be the deposit, to be forwarded from Atlanta. Mr. Makos confirms most of this indicating that prior to August 8, after being advised of the pending contract, he had several conversations with Respondent about the money which was expected but not yet received. He indicates, however, that after several notifications that the money was not in and that the contract would not be presented until it was, on August 8, Respondent called and requested an appointment with the sellers to present the offer contained in he proposed contract. Makos cannot be sure if Respondent made a positive representation at that time that he had the money in hand. When the contract was presented the next morning, however, it showed in paragraph 2, "Method of Payment," the words, "Deposit herewith," and the figure $20,000.00. The contract also called for an "additional" deposit of $30,000.00 to be paid upon acceptance of the contract by both parties. Both the original contract form and the re-typed copy executed somewhat later indicate a place for the escrow agent to show where the deposit has been received. On neither copy of the contract here is that particular clause filled in. Neither Mr. Starr, his partner, his broker nor his lawyer noticed this omission at the time the contract was signed or shortly afterwards. After the contract was signed by both parties, Mr. Makes partner, Mr. Pospeshil, in placing into motion those steps necessary to bring about the closing, first noticed it on or about August 10. He attempted to contact Respondent several times but was unable to reach him. Messages he left were unreturned until August 14, when he was finally able to reach McCrady to ask him for an escrow letter to cover not only the $20,000.00 but the $30,000.00 as well. At this point Respondent advised that no deposit money had been received and that both Makos and the seller knew this, a contention which Makos denies. Respondent also disputes Pospeshil's statement that he failed to return messages indicating he was either at home or available through his pager the entire time and got no calls on this matter until August 14. Nonetheless, Respondent advised Mr. Pospeshil that he would get the deposit money that evening and call back when he had it. He did not call back and Pospeshil called Respondent's counsel to advise him of the situation. When the deposit money was not delivered even the next day, Pospeshil called the sellers and told them that there was no deposit. When advised that Respondent had indicated that they knew the money had not been in hand at the time the contract was signed, both denied this. Considering the evidence, it is obvious than neither did know. The property was subsequently sold by Starr and Dowler for approximately $625,000.00. Respondent urges that Makos concealed his knowledge that at the time the contract was signed the deposit money was not in hand because the listing on the property was about to expire and Makos wanted to present a contract so that he could get a renewal of the listing. There is no evidence to support this theory and it is rejected. Respondent presented a series of contracts for the purchase and sale of real estate executed in other transactions in the Ft. Lauderdale area. Of these, however, the most recent is approximately three years before the instant situation and the oldest goes back to 1969. They were presented for the purpose of establishing the practice in the area of filling in the receipt portion of the contract form. This was supported by the testimony of Mr. LeGault, who had no participation in the instant case. He has presented contracts without the deposit being received but only upon full disclosure to the seller and then only when the seller requests that the contract be presented without the deposit. In his opinion, when the receipt portion of a contract is left blank, like here, it is more a letter of intent to open negotiations rather than a firm offer. The attorney, Mr. Parker, testifying for Respondent also related that the failure to show either a deposit received or a promissory note for the amount constitutes a failure of consideration and results in an invalid contract. Both Respondent and Makos agree that the receipt portion on a sales contract is normally filled in. However, Makos was quite adamant as to the fact that when it is not, he always asks the presenting broker for an escrow letter establishing that receipt. Whether the contract here is valid or not is immaterial to the issue in this case which is whether or not Respondent made a false representation when he presented the contract to the broker for the seller which indicated that a substantial down payment had been tendered. On the basis of the evidence outlined above, the inescapable finding is that Respondent, by either word or deed, communicated to Mr. Makos when he brought the offer, that the money had been received and was in his trust account as reflected in the upper portion of the contract form. Under the circumstances of this case where, among other things, nobody even noticed that the lower portion of the contract was not filled in, it is clear that Respondent intended to impart that idea. It must also be noted that in September 1983, Respondent, without either admitting or denying the allegations against him, signed a stipulation with Petitioner which disposed of other allegations in a different Administrative Complaint resulting in his being reprimanded, paying a $500.00 administrative fine, and agreeing not to violate the statutes and rules governing the practice of real estate in Florida in the future.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore: RECOMMENDED that Respondent, STEPHEN P. McCRADY'S license as a registered real estate broker in Florida be suspended for one year; that he pay an administrative fine of $1,000.00; that he be reprimanded; and that upon the completion of the period of suspension, he be placed on probation for two years. RECOMMENDED in Tallahassee, Florida, this 8th day of March, 1985. ARNOLD H. POLLOCK 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 8th day of March, 1985. COPIES FURNISHED: Arthur R. Shell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ronald R. Rogowski, Esquire 208 Southeast Sixth Street Ft. Lauderdale, Florida 33301 Harold Huff, Executive Director Department of Professional Regulation P.O. Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Florida Real Estate Commission presented evidence of the service of the Notice of Hearing upon Madison B. Graves, Esquire, 612 East Carson, Las Vegas, Nevada, 89101, as Counsel for Barbara Orcutt, by certified mail return receipt requested. Barbara Orcutt is presently a non-active broker; however, Barbara Orcutt was at the time in question in the Administrative Complaint a registered real estate broker with Gold Palm Realty Corporation, 1701 S. Federal Hwy., Boca Raton, Florida, 33632. Sigurd N. Hersloff was the owner of real estate described as 819 Lake Drive, Boca Raton, Florida. Hersloff contacted Jacqueline M. Winter, an associate broker with Gold Palm Realty, and advised her of his intent to sell said real property. Winter, in turn, mentioned the fact that Hersloff desired to sell his home to the Respondent, Barbara Orcutt. Orcutt stated to Winter that she (Orcutt) knew of a potential buyer for Hersloff's real property. David F. Young was advised by Orcutt of the availability for purchase of Hersloff's real property. Orcutt showed Hersloff's property to David F. Young, and subsequently David F. Young made an offer for purchase of Hersloff's real property for a purchase price of $76,200 putting up a $500 earnest money deposit. This proposal was presented to Hersloff in the presence of Winter. Hersloff was concerned and annoyed that Orcutt had received only $500 as an earnest money deposit. Hersloff told Orcutt that he did not consider $500 earnest money deposit sufficient compensation for taking his property off the market and advised Orcutt that Young would have to pay a full 10 percent of the $76,200 purchase price as earnest money deposit. Orcutt advised Hersloff that Young could not pay an earnest money deposit. Hersloff advised Orcutt that if Young could not pay the $7,620 earnest money deposit that he would accept a promissory note for the difference between the $500 and the $7,620. Orcutt left Hersloff and Winter presumably to return to Young to present Hersloff's objection to the contract for purchase. Orcutt later returned and spoke with Hersloff and Winter. She represented to Hersloff and Winter that she had obtained a promissory note from Young made out to Gold Palm Realty Corp. and that same would be deposited in Gold Palm Realty Corporation's escrow account together with Young's $500 earnest money deposit. Upon this representation Hersloff executed the contract for purchase presented by Orcutt in Young's behalf. The contract for purchase provided in part that Hersloff was to hold a second mortgage in the amount of $15,000 for a period of four months from the date of closing, said second mortgage to bear no interest. Young, who was in the process of selling real property in another state, became concerned that he might not be able to repay the second mortgage to Hersloff within the four months as stated in the contract. He spoke with Orcutt and asked her if she could obtain an extension of two months within which to pay the second mortgage. Orcutt represented to Young at that time that she did not anticipate that Hersloff would have any objection to such an extension. Subsequently in a conversation between Hersloff and Young, Hersloff determined that contrary to Orcutt's representation, she had not obtained a promissory note from Young. Young, at that time, learned that Orcutt had not mentioned a possible extension of the mortgage to Hersloff. On November 11, 1974, the Parties closed the transaction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the registration of Barbara Orcutt as a non- active broker be suspended for a period of two years. DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttman, III, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Madison B. Graves, Esquire 612 East Carson Las Vegas, Nevada 89101
Findings Of Fact Respondent Starla K. Rose, was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0046404. On February 25, 1985, an Information was filed in the Circuit Court of the Seventh Judicial Circuit, Broward County, Florida, charging Respondent with one count of grand theft, Sections 512.014(1)a and b and 512.014(2)b, Florida Statutes, two counts of insurance fraud by false or fraudulent claims Section 517.234(1)(a)1, Florida Statutes; and, one count of false report of the commission of a crime, Section 817.49, Florida Statutes. Respondent pled not guilty to the Information. On June 6, 1985, a verdict was rendered which found Respondent guilty of one count of grand theft, one count of insurance fraud by false or fraudulent claims and one count of false report of the commission of a crime. The court adjudged Respondent guilty of issuing a false report of the commission of a crime, withheld adjudication of guilt on the remaining counts, placed Respondent on probation for 3 years, and ordered her to pay costs. Respondent filed a timely motion for new trial following rendition of the verdict. At the time of final hearing in this case, no disposition had been made of Respondent's motion for new trial.
Findings Of Fact Respondent, at all times pertinent, was a registered real estate salesman holding license number 0314085. This license is currently under suspension as a result of disciplinary action by Petitioner. Respondent was, at all times pertinent, the President and a stock holder in D.S.A.E., Inc. D.S.A.E., in turn, was the owner (or co-owner with another corporation) of a tract of land located adjacent to U.S. Highway 27 in Broward County. Respondent, acting in his capacity as a real estate salesman, sought buyers for segments 1/ of the U.S. 27 property. He had made earlier sales of other property to Mrs. Lottie Kay and her son Michael Kay, and contacted the former in October, 1980, regarding the U.S. 27 property. The D.S.A.E. tract was zoned B-3 (business) on that portion which fronted U.S. 27. The rear segments were zoned A-1 (limited agriculture) and did not front U.S. 27. Initially, Respondent mentioned segments being offered for $60,000 and $24,000. However, Lottie Kay indicated that she could not afford the higher priced segments (which were zoned B-3). Lottie Kay asked Respondent to show her the property, and a visit to the general area was made. However, Respondent told her they could not get to the property which he said was located "on the other side of the construction." After visiting the area, she was not aware of the actual location of her property or of its character. 2/ She continued to believe that the property was "right on" U.S. 27. She based this belief on Respondent's original sales presentation rather than her visit to the area. The segment she purchased is about one quarter of a mile from U.S. 27. Lottie Kay was also confused as to the zoning on the property. She believed it was "commercial" and does not recall being told of the agricultural zoning by Respondent until about a year after the purchase. Her son, Michael Kay, who was present during a part of Respondent's initial sales presentation, heard only the B-3 zoning mentioned. Since he was not present throughout the discussion, he could have missed Respondent's reference, which he claims to have made, to the agricultural zoning on the back segments. On October 8, 1980, Lottie Kay, as buyer, contracted with Respondent on behalf of D.S.A.E. and a third party corporation, as sellers, to purchase "Tract 14" for $24,000 on an "agreement for deed." Under the terms of the contract, Lottie Kay paid $4,000 down and was to pay $215.59 per month thereafter beginning in November, 1980. Lottie Kay made the monthly payments through 1983. When she missed her first two payments in 1984, Respondent offered to reduce the contract price by $2,000 if she would resume monthly payments and make up the missing payments. Lottie Kay agreed to this modification of the contract, but discontinued further payments in April, 1984. Lottie Kay bought this property for speculation in reliance on Respondent's claim that its value would increase substantially in the immediate future. Respondent showed her newspaper clippings which supported his claim that the general area was one of future growth. He predicted her segment would be worth at least $30,000 in one year and stated that as to possible appreciation, "The sky's the limit." Respondent did not, however, point out that Lottie Kay's property could not be resold for any use other than agriculture since her segment was too small for even a home site under the existing zoning. Respondent also neglected to advise her that the property was underwater much of the year, and would have to be filled and probably permitted before any development could take place. The testimony of a real estate appraiser called by Petitioner established that the property was worth about $750 when purchased by Lottie Kay in October, 1980. 3/ This valuation was based on the witness' study of nearby land sales over a period of years as well as his inspection of the area in which the Kay segment is located. Respondent attempted to establish a higher market value by producing various warranty deeds whereby he or his affiliates had sold similar segments to other buyers for amounts approximating that agreed to by Lottie Kay. These sales do not establish value but, rather, indicate the gullibility of other buyers in making such purchases. After she fell behind in her payments, Lottie Kay tried to resell her property through Respondent in reliance on his claim at the time of his initial sales presentation that he could resell it for her in one week. When requested to do so he was unable to produce any prospective buyer. Thus, there appears to be no real market for this property, other than that generated by Respondent in his initial sales campaign. Lottie Kay did not consult an attorney or have the land surveyed or appraised prior to contracting for the purchase. Rather, she trusted Respondent who she knew to be a real estate professional. She was also aware that he was an owner of the property, but still believed she could rely on his statements that the current market value of her segment was at least $24,000 and that future profits were assured. Respondent attacks the fairness of these proceedings on the alleged misconduct of Petitioner's investigator, who encouraged Lottie Kay to come forward after she (with the help of her son) had filed a complaint with Petitioner. The investigator made statements to the Kays which indicated his belief that Respondent was engaged in fraudulent land sales, and was a menace to the public. Although the investigator's statements to the Kays were gratuitous and inconsistent with his fact finding role, there is no indication that such statements resulted in any false testimony or other unreliable evidence. Respondent notes that Lottie Kay continued to make payments on her contract with Respondent even after she had filed a complaint with Petitioner and reasons that she must have considered the property a worthwhile investment. Lottie Kay demonstrated through her testimony and recitation of her dealings with Respondent that she is gullible and imprudent in financial matters. Thus, her continued investment of funds in this property indicated lack of prudence rather than an informed belief that the property had any substantial value.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of misrepresenting property value as charged in Count II of the Administrative Complaint, in violation of Subsection 475.25(1)(b), Florida Statutes, and suspending his license as a real estate salesman for a period of three years to begin upon completion of his current license suspension period. DONE and ENTERED this 3rd day of December, 1984 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 3rd day of December, 1984.
The Issue Whether Respondent violated Section 475.025(1)(b), Florida Statutes, and, if so, what the appropriate penalty is.
Findings Of Fact At all times relevant hereto, O. Dane Streets was licensed by the Florida Real Estate Commission as a real estate broker having been issued License No. 0085710-1 for an address in Lakeland, Florida. In the Spring or early Summer of 1991, Nathan Price, a minister in Orlando, Florida, contacted Respondent to solicit Respondent's participation in representing Price's daughter, Melissa Howard, in purchasing real estate in Orlando. Price and Respondent have been business and social acquaintances for more than 10 years, and Price was helping his daughter and son-in-law in purchasing a home. The Howard's found a house they liked, Respondent obtained the listing information from the listing broker and prepared a contract for sale and purchase (Exhibit 1). As modified and accepted by all parties, this contract provided for a $1000 earnest money deposit to be held in escrow by Respondent's real estate company. In lieu of obtaining the deposit from Price or Howard, Respondent told Howard to give the earnest money deposit to the selling broker as all of the transactions were to be conducted in Orlando. The $1000 earnest money deposit was given to neither Respondent nor the listing broker, ReMax Southwest in Orlando. The failure of Respondent to follow up to insure that the earnest money deposit had been given to the listing broker in this transaction does not reach the status of fraud or dishonest dealing as Respondent had no such intent. Shortly before the August 21, 1991 closing date, Price advised Respondent that the mortgage lender was asking about the earnest money deposit. Respondent immediately obtained a cashier's check dated August 8, 1991 (Exhibit 2) in the amount of $1000 which Price presented at the closing on August 21, 1991. In his testimony, Respondent acknowledged that he erred in not obtaining the earnest money deposit or failing to check to be sure the deposit had been made with the listing broker. Since Respondent is located in Lakeland and the property being purchased is in Orlando when the closing was held, Respondent thought everything would be simplified if the deposit was held by the listing broker. When the listing broker learned that the deposit of $1000 had never been received by Respondent and placed in escrow, a complaint was made to the Florida Real Estate Commission, and these proceedings followed. Respondent has held licenses from the Florida Real Estate Commission for some 20 years, and this is the first time any charges have been brought against his license.
Recommendation It is Recommended that a Final Order be entered finding O. Dane Streets not guilty of violating Section 475.25(1)(b), Florida Statutes, as alleged. ENTERED this 21st day of January, 1992, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1992. Copies furnished to: Steven N. Johnson, Esquire Darlene F. Keller Division of Real Estate Division Director 400 W. Robinson Street Division of Real Estate Post Office Box 1900 400 W. Robinson Street Orlando, FL 32801-1900 Post Office Box 1900 Orlando, FL 32801-1900 O. Dane Streets Post Office Box 6852 Jack McRay, Esquire Lakeland, FL 33807 Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Respondent Martha M. Bustillo is a real estate broker licensed in the State of Florida, having been issued license number 0401092. At all times material hereto, she has been the qualifying broker for Respondent Virmar Investments, Inc. Respondent Virmar Investments, Inc., is a real estate brokerage corporation licensed in the State of Florida, having been issued license number 0237551. At no time material hereto has Respondent Olga Venedicto been licensed in the State of Florida as either a real estate broker or as a real estate salesperson. In July of 1992 Thomas F. Sevilla contacted Virmar Investments, looking for a house to buy. Olga Venedicto took his phone call and told him that she would help him. Sevilla went to Venedicto's "office" at Virmar Investment and began working with her. Venedicto gave Sevilla her business card which represented that she is the vice president of Virmar Investments, Inc., and carries the notation "registered real estate brokers." In addition to giving him her card which carried her name, Virmar's name, and the word "brokers" in the plural form rather than the singular form, Venedicto specifically told Sevilla that she was a broker. Venedicto and Bustillo took Sevilla to see a house which he decided to buy. He gave Venedicto his check for $2,000 as a deposit and instructed her and Bustillo to make an offer on that house. Venedicto told him she would put the money in Virmar's escrow account. Instead, the money was deposited in Virmar's operating account. Sevilla did not buy that house, and Venedicto and Bustillo took him to see a second house. Sevilla decided not to make an offer on that house and asked Venedicto to refund his money. It took a month before Sevilla received a check from Venedicto. Although the check was marked "deposit return," the check was not written from Virmar's account but rather was a check from a Mega Group Corp. for only $1,675. When Sevilla attempted to cash that check, it was dishonored three times, with the notation "N. S. F." Finally, the check was honored by the bank. Sevilla had expected to receive his entire $2,000 deposit. Neither Venedicto nor Bustillo had ever told him in advance that they would keep part of his money. Although Respondents' attorney during the final hearing implied that his clients may have kept part of Sevilla's money to pay for a survey and credit report, Sevilla had not agreed in advance to pay for a credit report, and no evidence was offered as to what house Sevilla might have purchased a survey on or for what reason. Further, neither Venedicto nor Bustillo gave him a copy of any survey or credit report nor was he ever shown one or advised that either would be obtained. When Sevilla inquired as to why he was reimbursed the lesser amount, only then did Venedicto tell him that Respondents were keeping part of his money for a credit report. Respondents Bustillo and Virmar authorized and assisted Venedicto in her performance of acts and services requiring licensure as a salesperson relative to the transaction with Sevilla. Rita and Carlos Benitez listed their house for sale with Pedro Realty. Gladys Diaz was the listing agent at Pedro Realty. Respondents Bustillo and Venedicto brought Carlos Martinez and his wife to look at the Benitez house. Gladys Diaz was present at the time. Respondents Bustillo and Venedicto subsequently came to Diaz' office and presented to Diaz and Carlos Benitez an offer on behalf of Mr. and Mrs. Martinez. Respondent Venedicto represented herself to be a realtor and Respondent Bustillo to be Venedicto's partner and broker. Respondent Venedicto discussed the contract and price with Diaz and Benitez while Respondent Bustillo observed Venedicto's presentation. The offer had previously been signed on behalf of Respondent Virmar by Respondent Venedicto who represented to Diaz that the signature on the offer was that of Respondent Venedicto. Mr. Benitez signed the document, and Diaz then took the offer to Mrs. Benitez to obtain her signature. Mrs. Benitez also signed the offer, thereby completing the contract. Thereafter, delays ensued because Mr. and Mrs. Martinez were not in a financial position to be able to purchase the home. Respondent Venedicto contacted Mrs. Benitez and attempted to re-negotiate the contract. During those negotiations which were not successful, Respondent Venedicto represented herself to Mrs. Benitez as being a licensed real estate agent. In response to Mrs. Benitez' inquiries, Respondent Venedicto gave Benitez her business card carrying the names of Venedicto and Virmar and the notation "registered real estate brokers." As to the portion of the transaction involving Mrs. Benitez, all of her contact with the three Respondents in this cause was with Respondent Venedicto. Venedicto gave Benitez advice regarding proceeding with the sale and handled the negotiations. Prior to September 24, 1992, Hector F. Sehweret, an investigator for the Department of Business and Professional Regulation, requested that Respondents Bustillo and Virmar produce certain records for inspection by him. He spoke with Respondent Bustillo on a number of occasions to no avail. He offered to give her time to gather the records if necessary, but she never did. On September 24, 1992, he served Respondent Bustillo with a subpoena for those records. She still failed to produce them. Thereafter, she would not return his phone calls, and when he came to the office of Virmar Investments, Respondent Bustillo would hide from him. Neither Respondent Bustillo nor Respondent Virmar have ever produced the records subpoenaed. Further, no explanation has been given for the failure of Respondents Bustillo and Virmar to produce their records. Although the attorney for Respondents implied during the final hearing that the records may have been destroyed by Hurricane Andrew, there is no evidence to support that implication; rather, the evidence is uncontroverted that the building housing the real estate office of Respondents Virmar and Bustillo was not damaged by Hurricane Andrew. Ileana Hernandez is a realtor and a mortgage broker licensed in the State of Florida. She met Respondents Bustillo and Venedicto during a real estate transaction. In November of 1991 Respondents Bustillo and Venedicto contacted Hernandez regarding obtaining money in exchange for a second mortgage on certain real property. At the time, Respondents did not tell Hernandez the identity of the owner of the property, but Hernandez was given the address of the property and was advised that the market value of the property was approximately $79,000. Hernandez was subsequently advised that Respondent Venedicto (a/k/a Olga Bichara) was the owner of the property. It was agreed that Respondent Venedicto would execute and record the promissory note and mortgage in the amount of $15,500. Hernandez, who knew that Respondent Bustillo was the president of Terra Title, gave her a personal check payable to Terra Title in the amount of $15,000 on November 26, 1991. Respondent Venedicto, who had promised Hernandez that the promissory note and second mortgage would be recorded, never recorded those documents. Further, Respondents never delivered the original copy of the promissory note and mortgage to Hernandez despite her repeated demands. Hernandez later discovered that Respondent Venedicto was not the sole owner of the property which she had attempted to mortgage but jointly owned the property with her son. Accordingly, Respondent Venedicto's signature would not be sufficient to perfect a mortgage on the property. Hernandez also discovered that the mortgage, represented by Bustillo and Venedicto to be a second mortgage, was not. There were already two mortgages on the property. Had Hernandez known the true ownership and the true encumbrances on the property, she would not have loaned Venedicto the $15,000 because that raised the total amount of mortgages on the property to be in excess of the value of the property. Three checks which were subsequently written by Respondent Bustillo from the operating accounts of Respondent Virmar and of Mega Group Corp. were dishonored by the bank with the notation "N. S. F." As a result of those checks, Hernandez obtained default final judgments against Respondent Virmar and against Mega Group Corp., which final judgments are still unsatisfied. Prior to that time, however, Respondents Venedicto and Bustillo approached Hernandez regarding their need to borrow $35,000 to be re-paid in 30 days in conjunction with some real estate development in which Respondents Venedicto and Bustillo were involved. Respondent Venedicto and Respondent Bustillo each individually represented that Hernandez would have her money back in 30 days. Respondent Bustillo told Hernandez that Respondent Venedicto was in business with Bustillo and was selling real estate in Mexico. Bustillo asked Hernandez to make the check payable to Bustillo's company Terra Title. Hernandez went to the offices of Respondent Virmar and handed her personal check made payable to Terra Title to Respondent Venedicto. When the 30 days had passed with no payments to Hernandez, she went to Virmar Investments and made Respondent Venedicto sign a promissory note for $35,000. By the time of the final hearing in this cause, Hernandez had recovered only $15,000 of the $35,000 loan made to Respondent Venedicto and had recovered only the principal amount of the money supposed to have been secured by a second mortgage on real property. Hernandez is still owed $20,000 in principal alone.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered revoking the license of Respondent Martha M. Bustillo, revoking the license of Respondent Virmar Investments, Inc., and requiring Respondent Olga Venedicto to pay an administrative penalty in the amount of $5,000 within 30 days from the entry of the Final Order. DONE and ENTERED this 31st day of January, 1994, at Tallahassee, Florida. LINDA M. RIGOT 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 January, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-3328, 93-3329, and 93-3330 Petitioner's proposed findings of fact numbered 2-18, 20-29, and 31-33 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Petitioner's proposed finding of fact numbered 19 has been rejected as not being supported by the weight of the evidence in this cause. Petitioner's proposed finding of fact numbered 30 has been rejected as being unnecessary to the issues involved herein. Respondents' proposed findings of fact numbered 1, 4, 5, 8, 9, 18, 25, 26, 28, 37, 42, 49-52, 55, 57, 62, 63, 69, 71, and 73 have been adopted either verbatim or in substance in this Recommended Order. Respondents' proposed findings of fact numbered 2, 6, 11-17, 19-22, 30- 36, 43, 46-48, 53, 54, 56, 58, 60, 67 and 68 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondents' proposed findings of fact numbered 7, 10, 23, 29, 61, 64, 65, 70, 72, and 75 have been rejected as not being supported by the weight of the evidence in this cause. Respondents' proposed findings of fact numbered 3, 24, 27, 38-41, 44, and 45 have been rejected as being unnecessary to the issues involved herein. Respondents' proposed findings of fact numbered 59, 66, 74, and 76-78 are rejected as being irrelevant to the issues under consideration in this cause. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, Suite N-308A Orlando, Florida 32802-1900 Ofer M. Amir, Esquire Amir & Associates, P.A. 8751 West Broward Boulevard, Suite 500 Plantation, Florida 33324 Darlene F. Keller, Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32802-1900 Jack McRay, Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Tallahassee, Florida 32399-0792
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact At all times material hereto, Respondent has been a real estate salesperson in the State of Florida, having been issued license number 0611282. At all times material hereto, Respondent was employed by Steven J. David at Century 21 Tri City Realty, Inc., in Fort Lauderdale as a licensed real estate salesperson. Her duties were selling and leasing real estate and managing properties owned by her employer. She was paid a commission on transactions she handled. In November 1996, Mike Nickas began receiving late notices from various mortgage companies which held mortgages on properties owned by him and David. He and David began investigating how that could be. They discovered that Respondent had written seventeen checks totaling in excess of $8,000 during 1996 from the business accounts payable to "cash" or to herself and had forged Nickas' signature to those checks. Those payable to "cash" were endorsed and cashed by her. Respondent was not a signatory on those accounts. In order to hide her theft, Respondent wrote in the checkbook that each check was "void" or wrote false entries as to the amount of the check and the payee. Further, when the bank statements arrived at the business each month, Respondent removed the unauthorized checks from the envelope. Respondent was not authorized to sign Nickas' name to any of those checks. Further, Respondent was not authorized to write those checks payable to herself or to write them payable to "cash" and then cash them herself. When David and Nickas confronted Respondent with their discovery, she admitted that she had written the checks without authorization. Respondent's employment was terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations in the Administrative Complaint filed against her and revoking her license as a real estate salesperson. DONE AND ENTERED this 13th day of October, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1998. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, No. N 308 Orlando, Florida 32801 Stephen Post, Esquire 600 South Andrews Avenue Fort Lauderdale, Florida 33301 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32802
The Issue Whether Defendants breached an oral contract with their employer. Whether the Defendants, both of whom were registered salesmen employed by Rivas Realty, Inc., conducted themselves in such a manner that the sellers of a certain parcel of real estate suffered a loss of a substantial profit from their property. Whether the licenses of the Defendants should be revoked.
Findings Of Fact Defendants Victor Hugo Hernandez and Elisa Hernandez, husband and wife, were registered real estate salesmen employed by Rivas Realty, Inc., a corporate broker, with offices located at 2341 N.W. 7th Street, Miami, Dade County, Florida. Defendants were employed by Rivas Realty, Inc., a corporate broker, under an oral employment agreement whereby real estate transactions entered into by them or either of them as registered salesmen or personally or jointly for their own account were to be handled through said broker's office; that all details of any such real estate transaction were to be available in open files in said office; that they were to identify themselves as salesmen for Rivas Realty, Inc. On or about December 20, 1973, Defendant Victor Hugo Hernandez individually and for the benefit of himself and his wife jointly contracted to buy the residence at 526 E. 44th Street, Hialeah, Florida, from Frank J. Crawford, Jr., and Alexis Jo Crawford, his wife, for the sum of approximately $27,000. The transaction closed on or about January 3, 1974, and conveyance by warranty deed was made by the Crawford to Paul G. Block, Trustee. The property was soon resold. The Real Estate Commission contends: That the Defendants represented themselves as individuals desiring to purchase the home from the Crawfords for their son; That the Defendants had no intention of purchasing said property for the son and in fact, soon thereafter resold the property at a substantial profit to themselves; The Defendants through their misrepresentation defrauded the Crawfords of a substantial profit; They did not inform the Crawfords that they were in fact salesmen for Rivas Realty, Inc.; That the Defendants violated the oral agreement they had with the employer, Rivas Realty, Inc., when they failed to process the purchase and the resale of the Crawford property through the Rivas Realty, Inc.; That the Defendants are guilty of misrepresentation, concealment, dishonest dealing, trick, scheme or device and breach of trust in a business transaction, all in violation of Section 475.25(1)(a), Florida Statutes; That the registrations of Victor Hugo Hernandez and Elisa Hernandez should be suspended or revoked. The Defendants contend: That at the time of the sale and the purchase of the home from the Crawfords they had secured permission from the Rivas Realty, Inc. to purchase a home for their son; That the employer, Mr. Anthony Rivas, had given permission to the Defendants, as long time and effective salesmen, to purchase the property inasmuch as it was for the benefit of the son; That the son did not want the property after it was bought and therefore the property was immediately placed for sale; That the Defendants shortly after the purchase and sale of the property in question did in fact buy for their son a home in another location; That they in no way planned to trick the Crawfords into the sale of their home by not representing themselves as real estate agents; That in fact they did so represent themselves as real estate agents and placed the sign of Rivas Realty, Inc. in front of the Crawford home before the resale; That it was generally understood by the owners and among the long time employees of Rivas Realty, Inc. that they could at times buy and sale for their own personal benefit properties that members of their family might desire without processing the sale through the business office of Rivas Realty, Inc. or dividing the profit with the corporation. That they did not breach the oral contract between themselves and the employer. The Hearing Officer finds: That the Defendants, Victor Hugo Hernandez and Elisa Hernandez, bought the home of Mr. and Mrs. Crawford under circumstances which tended to deceive the purchasers but without actual misrepresentation; That there was no showing of an actual loss by the Crawfords; That the oral agreement between the Defendant salesmen and the employer, the Rivas Realty, Inc., was at times waived by the owner, Mr. Rivas or his brother, as special favors to their salesmen; That the Defendants acted under a waiver of the oral agreement between themselves and the Rivas Realty, Inc. when they purchased and resold the home of Mr. and Mrs. Crawford, or their acts were approved or condoned by the employer; That the evidence received and the testimony taken do not show that the Defendants, Victor Hugo Hernandez and Elisa Hernandez, breached the fiduciary relationship with their employer, Rivas Realty, Inc.; That the evidence received and the testimony taken do not prove the Defendants to have been guilty of misrepresentation, concealment, dishonest dealing, trick, schemes or device and breach of trust in a business transaction in violation of Section 475.25(1)(a), Florida Statutes.
