Findings Of Fact Respondent Santaniello holds real estate broker license number 0186475, and was so licensed at all times relevant to this proceeding. Santaniello is the active broker for Respondent, Sunair Realty Corporation, which holds license number 0213030. Mr. Don M. and Mrs. Agnes C. Long own two lots in Port Charlotte which they purchased as investments. By letter dated June 8, 1981, Respondents forwarded a "Deposit Receipt and Contract for Sale and Purchase" on each of these lots to the Longs. The documents established that Anni Czapliski was the buyer at a purchase price of $1200 per lot. Respondent Sunair Realty Corporation was to receive the greater of $120 or ten percent of the felling price for "professional services." The letter and documents were signed by Respondent Santaniello. Anni Czapliski was Bernard Santaniello's mother-in-law at the time of the proposed sale. This relationship was not disclosed by Respondents and was not known to the Longs at the time they were invited to contract with Respondents for sale of the lots. The Longs rejected the proposed arrangement for reasons not-relevant here.
Recommendation From the foregoing findings of fact and conclusions of law it is RECOMMENDED that Petitioner enter a Final Order finding Respondents guilty of violating Subsection 475.25(1)(b), Florida Statutes (1979), and fining each $500. DONE and ENTERED this 16th day of April, 1982, in Tallahassee, Florida. COPIES FURNISHED: Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert J. Norton, Esquire Suite 408 First National Bank Building Punta Gorda, Florida 33950 Mr. C.B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801 Frederick Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 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 16th day of April.
Findings Of Fact Carmine Amato is a real estate broker holding license number 0110690, and is the broker for Wise Realty in Broward County, Florida, which he wholly owns. Amerigo DiPietro is a real estate salesman holding license number 0326813. At all times in question, DiPietro was employed by Wise Realty, and Amato was his supervising broker. In August, 1980, DiPietro took a sales contract from Charles and Jennie Conroy for the sale of their home in Broward County, Florida, described as Lot 3, Block 5 of Margate Estates, Section 3. DiPietro suggested to the Conroys that they could afford a larger home by selling their present house and using the equity to put a down payment on a new house. The Conroys subsequently contracted to buy a larger and more expensive house in Broward County from the Hocenics, said house described as Lot 13, Block 8 of Kimberly Forrest. DiPietro found buyers, the Meads, for the Conroys' house; however, the Meads were unable to qualify, and the contract did not close. The Conroys were anxious to close on the Hocenics' house and, as a result, sought a loan from Security Pacific Finance Company, said loan being referred to as a "swing" loan. The Conroys used this swing loan to close on the Hocenics' house, and this loan was secured by a security interest in their old home and the Hocenics' home. The Conroys were not induced in any manner by the Respondents to seek this swing loan. Having obtained the loan, the Conroys closed on the Hocenics' house, moved out of their old house and into the Hocenics' house, and assumed financial responsibility for both homes. Because the Conroys were short $2400, DiPietro took a note from the Conroys payable from the proceeds of the sale of their house. This represented money due DiPietro, which the Conroys could not pay at closing. DiPietro continued to attempt to sell the Conroys' old home and found another buyer, the La Serras. The La Serras qualified, but the Conroys could not raise $3400 needed to pay off their obligation at the closing of the sale of their old home. Because of this, the La Serra transaction did not close. In an effort to save the deal and close the La Serra contract, DiPietro made every effort, even agreeing to take a note for the commissions due to Wise's sales people, who represented both buyer and seller. The Conroys refused to close. With the swing loan almost due, Mrs. Conroy asked DiPietro if he and Amato would buy their old house outright. Eventually, DiPietro and Amato agreed to buy the house and accept financial responsibility for the first mortgage if the Conroys would agree to certain conditions. DiPietro indicated from the outset that neither he nor Amato had sufficient cash to purchase the house outright, and that financing would have to be arranged. DiPietro also advised the Conroys that, if this financing could not be arranged, the swing loan would have to be extended, and that it would be necessary for the Conroys to work with Amato and him to arrange for the extension of this loan. The specific conditions which the Conroys would have to meet were as follow: (a) the Conroys would give Amato and DiPietro a quit claim deed to their old house; (b) the Conroys would do those things necessary to extend the swing loan another six months; and (c) DiPietro and Amato would assume immediate financial responsibility for the house and, during the six months' period, sell it or arrange for long-term financing. The Conroys concurred in this agreement and executed a quit claim deed to their old house to the Respondents. DiPietro tried three different companies, seeking substitute financing for the house. When he failed in this, DiPietro contacted Mr. Conroy about renewing the swing loan. Mr. Conroy accompanied DiPietro to Security Pacific to renew the swing loan. DiPietro attempted to get Security Pacific to substitute any of a number of pieces of property owned by Amato and him for the Conroys' new house and to release its security interest in said house. Because of Security Pacific's excellent equity position in this new house, Security Pacific was unwilling to release its encumbrance on the Conroys' house. Security Pacific said it would release its interest in the Conroys' house only if the amount of the loan was paid down to an amount that the old house could secure. Neither Amato, DiPietro nor Conroy could afford to do this. Security Pacific said it would renew the loan only upon the Conroys' reapplication. Lastly, Security Pacific made clear that it still looked to the Conroys and to their new house as primary security on the swing loan. During all this time, the Conroys' old home was vacant. It had been vandalized and had suffered significant damage which decreased its value. In addition, no yard maintenance had been performed during the period since the Conroys had moved out. To be salable, substantial repairs and maintenance had to be performed by DiPietro and Amato. The revelation that Security Pacific looked to him and his wife for payment of the loan secured by their new house frightened Mr. Conroy. The Conroys were already financially strapped, having been responsible for the payments on both houses during this time. With the swing loan nearly due, and envisioning the loss of both houses and being left with an unsatisfied $28,000 debt, Conroy went to an attorney. The attorney advised Conroy not to join with DiPietro and Amato in extending the swing loan. When the swing loan was not extended, Security Pacific commenced foreclosure proceedings. Amato and DiPietro kept up the payments on the first mortgage, although Mrs. Conroy had to complain at first when these payments were late. The first three payments (July, August and September) were delayed following transfer from the Conroys to Amato and DiPietro. DiPietro and Amato did not promise to assume sole responsibility for the swing loan. DiPietro's representation was that they would try to refinance the property, and that if they could not refinance it they would assume primary responsibility for payment of the swing loan if the Conroys would join with them in extending the swing loan. Respondent Amato never saw or spoke to the Conroys and never made any promises which he did not fulfill. When the foreclosure action commenced, DiPietro stepped up his effort to sell the Conroys' old house and, approximately six to eight weeks later, sold it after substantial repairs were completed. The sales price was $57,000. At the time of the sale, approximately $32,000 was owed on the house to Security Pacific, and approximately $21,000 was owed to Heritage Mortgage Company on the first mortgage. Respondent Amato had put approximately $2,000 into repairs on the house, and Wise Realty was owed a note of approximately $2400 representing commission on the Hocenic/Conroy sale.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the following is recommended: That the charges against the Respondent, Carmine Amato, be dismissed, it having been found that he had no contact with the Conroys, could not have made any representations to them, and is not guilty of Violating Section 475.25(1)(b), Florida Statutes; and That the charges against the Respondent, Amerigo DiPietro, be dismissed, it having been found that he made no misrepresentations to the Conroys and therefore did not violate Section 475.25(1)(b), Florida Statutes. DONE and RECOMMENDED this 14th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 14th day of April, 1983. COPIES FURNISHED: Fred Langford, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Lawrence F. Kranert, Jr., Esquire 1000 South Federal Highway, Suite 103 Fort Lauderdale, Florida 33316 David F. Hannan, Esquire 3300 Inverrary Boulevard, Suite 200 Lauderhill, Florida 33319 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William M. Furlow, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Jeralne C. Burt is registered with the Florida Board of Real Estate as a salesperson and was so registered at all times here involved. In the fall of 1977, Barbara Rogers came to Respondent's home seeking to purchase residential real estate and was shown several houses by Respondent. One of these houses she agreed to purchase. When asked how she wanted the contract made out, Barbara Rogers said make the contract in the name of Louise Rogers, her sister. The contract to purchase was prepared and given to Barbara Rogers to have executed. When this contract (Exhibit 1) was returned to Respondent it was signed Louise Rogers as the buyer, but the signature was not witnessed. After being assured that Louise had signed the contract to purchase, Respondent signed as a witness to the previously unwitnessed signature of Louise Rogers. At the time this offer was executed by the buyer, Respondent understood that Barbara Rogers was putting up the money for the cash required over the mortgage. Thereafter, Louise Rogers proceeded to the bank where the necessary documents were executed to qualify for an FHA morgage on the property. At the designated closing date Respondent drove to Barbara Rogers' house where Barbara was picked up and they went to the place Louise worked to pick her up. Louise came out to the car and told Respondent that she couldn't get off work and that Barbara could sign the papers for her. When Respondent said she thought Louise should come to the closing to sign, Louise replied that she and her sister signed each other's names all the time and that it was all riht for Barbara to execute the papers. Respondent and Barbara Rogers proceeded to the closing. No one inquired if Barbara Rogers was Louise Rogers, nor was she ever introduced as Louise Rogers. At the closing Barbara Rogers signed Louise Rogers' name on the various documents presented for signature. Due to the house requiring some repairs the closing was kept in escrow for approximately one week to ten days. During this escrow period the mortgage processor at the Barnett Bank, who had processed the application of Louise Rogers, received a phone call from a woman identifying herself as Louise Rogers inquiring when the closing on the house was to take place. When Louise Rogers said she had not executed any papers for the closing the bank officials quickly re-assembled the parties and this time all documents were executed by the real Louise Rogers. Although Respondent realized Louise Rogers should have signed the documents at closing, because of Louise's insistence that Barbara could sign for her and Respondent's previous experience of signing her grandmother's name for her the past two years of her grandmother's life, Respondent assumed the authorization for Barbara to sign Louise's name had been given.
Findings Of Fact Petitioner is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints relative to real estate transactions. (Official recognition of Florida Statutes, TR 6-7) Respondent is now and was at times material hereto, a licensed real estate broker in Florida, having been issued License No. 0149408. The last license to Respondent was as a broker, t/a Marathon Realty at Post Office Box 2386, Marathon Shores, Florida 33052. (Petitioner'S Exhibit 1) On or about May 2, 1985, Respondent solicited and obtained a sales contract entered into by Emily Cathy Cronnon, as purchaser, and W. J. and Delores Sarver , as sellers, for the purchase and sale of certain residential property (contract for sale). (Petitioner'S Exhibit 2) The sales transaction was scheduled to close on or about July 1, 1985, but the transaction did not close. On or about December 2, 1985, the purchaser and sellers terminated the sales contract. (Petitioner'S Exhibit 3) On or about May 13, 1985, the Respondent allowed Emily Cathy Cronnon and her live-in boyfriend, Billy Hull, to take possession and occupy the property with the knowledge and consent of seller W. J. Sarver. In this regard, W. J. Sarver denies giving permission to Ms. Cronnon to occupy the property prior to closing. However, it is found herein and the testimony of Billy Hull and Respondent substantiate the fact that Emily Cronnon and Billy Hull visited Respondent's office during early May, 1985, to find out whether they could move into the Sarver property with their furnishings prior to closing. Initially, Ms. Diabo advised Cannon and Hull that she was not at liberty to permit them to move in. However, she told them that if they liked, they could phone Mr. Server and get his permission. This was done and it is found that Mr. Sarver gave his permission to Respondent to allow Ms. Cronnon and Billy Hull to occupy the premises prior to closing, provided they turned the utilities off and then had the same turned on in their name. This was done, and the contract purchaser (Cronnon) and her boyfriend, Billy Hull, moved in prior to the time that the transaction closed. Respondent received a $500 rental payment from the purchaser on August 19, 1985. (Respondent's Exhibits 1 and 2) Respondent deposited said check in an appropriate bank account and waited eleven (11) days for that check to clear. On August 30, 1985, she wrote a $500 check to the Sarvers indicating that the same was rental payment to them for the use of their property by Cronnon and Hull. Respondent customarily waits at least ten (10) days for any check to clear before she writes a check drawn on those same funds.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 9th day of July, 1987, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 9th day of July, 1987. APPENDIX Rulings on Petitioner's proposed findings: 1. Accepted as modified. 7. Rejected based on credible evidence herein which reveals that Emily Cathy Cronnon and her live-in boyfriend, Billy Hull, took possession and occupied the property with the prior knowledge and consent of seller, W. J. Sarver. Rejected based on credible evidence which reveals that Respondent did not conceal the rent payment, but rather deposited the rent payment until the funds cleared her bank and she immediately thereafter transmitted the proceeds to the Sarvers. Rejected as irrelevant and unnecessary to decide the issues posed. Rejected as a conclusion and not a finding of fact. Respondent's proposed findings and conclusions are largely a brief in the form of resolutions of credibility, conflicts, recommendations as to how those conflicts should be resolved, and conclusions in the form of ultimate findings of fact. As such, they are not specifically addressed in the Appendix, but were carefully considered and reviewed by the under signed in preparation of the Recommended Order. COPIES FURNISHED: JAMES H. GILLIS, ESQUIRE SENIOR ATTORNEY DIVISION OF REAL ESTATE POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802 MICHAEL H. DAVIDSON, ESQUIRE WATSON & CLARK POST OFFICE BOX 11959 FORT LAUDERDALE, FLORIDA 33339 HAROLD HUFF, EXECUTIVE DIVISION OF REAL ESTATE POST OFFICE BOX 1900 ORLANDO, FLORIDA 32502 HONORABLE VAN B. POOLE, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 JOSEPH A. SOLE, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
The Issue Marcus W. Turner has been charged with two violations of Chapter 517, Florida Statutes, the Florida Securities and Investor Protection Act. The violations, described in an Administrative Complaint dated August 30, 1990, are as follows: Section 517.12(1), Florida Statutes: Respondent sold or offered for sale securities in or from offices in this State when he was not registered with the Department as an associated person. (Administrative Complaint, paragraph 15F and Conclusion of Law G) Section 517.301(1)(a) and (c), Florida Statutes: Mr. Turner engaged in transactions, practices, and courses of business which operated or would operate, as a fraud or deceit upon a person; and he knowingly and willfully falsified, concealed, and covered up by trick, scheme or device the material fact that he conducted customer trades while an unregistered person. (Administrative Complaint, paragraph 16 and Conclusion of Law H)
Findings Of Fact Respondent Turner was registered with the Department as an associated person of Hampton Securities, Inc. from July 26, 1988 through August 7, 1989. Respondent Turner was served with a Notice of Taking Deposition on January 31, 1991. The U.S. Postal Service return receipt indicates that Respondent Turner received the Notice of Taking Deposition on February 4, 1991. On February 12, 1991, at 10:00 a.m., the Department was prepared and ready to depose Respondent Turner. The court reporter had been called to the Office of the Comptroller, 111 Georgia Avenue, Suite 211, West Palm Beach, Florida 33401 in order to transcribe the deposition. Mr. Turner did not appear for deposition, nor did he communicate in any manner with counsel regarding the scheduled deposition. The court reporter filed a Certificate of Nonappearance and the Department was billed for the court reporter's appearance at the scheduled deposition. Consequently, the Department served a Motion to Compel Discovery and Motion for Attorneys Fees on March 4, 1991. On March 20, 1991, Hearing Officer Donald D. Conn entered an Order Granting Motion to Compel. The Respondent was ordered to make himself available for discovery or in the alternative to show cause why compliance was not possible. Turner did neither. On April 24, 1991, the Department filed a Motion to Impose Sanctions requesting that Respondent Turner's Petition for Formal Hearing be stricken from the record and that a judgement for default be entered. The Motion to Sanction was denied. Taken as a whole, the record shows that Mr. Turner has ignored this proceeding after filing his request for a hearing on October 3, 1990. Ms. Tiffany Lynn testified for the Department regarding the allegations against Turner. She discussed the nature of the examinations of Hampton Securities and its officers and employees conducted by the Department. Ms. Lynn had gone to the offices of Hampton and requested to speak to a person of authority. The president of the firm, Delores Easthom, presented herself. Ms. Easthom provided documents to Ms. Lynn which were the records kept in the normal course of business at Hampton. Additionally, Andrew Greitz, Compliance Officer at Hampton Securities, Inc., assisted in providing records. Composite Exhibit 18 is a compilation of order tickets and confirmations received from Easthom and Greitz which demonstrate that trading was conducted by Marcus Turner at Hampton Securties, Inc. prior to his registration with the Department. The top part of each page is the order, the bottom is the confirmation. The confirmations are documents generated at Southwest Securities, Inc., Hampton's clearing firm, from data regularly given to Southwest by Hampton Securities. The first document in exhibit 18 is for customer "William Dolfi." The trade was made on July 22, 1988, by a registered representative (stock broker) using Hampton's house account number 0844. However, on the order form the initials "M.T." are inserted by hand interlineation on the bottom of the page. This was done to record that Respondent Turner conducted the trade and should be paid the commission arising from the trade. The trade was made prior to Turner's registration date. The next page of Exhibit 18 indicates that customer "Dr. Donald M. Snyder" was sold securities by a registered representative using Hampton house account number 0844. On the bottom of the first order form are printed the initials "MT" by hand. This trade was made on June 13, 1988, prior to the July 26, 1988, registration date of Respondent Turner. The next pages in Exhibit 18 show that Dr. Snyder also had been was sold securities on or about June 3, 1988, by a registered representative using Hampton's house account number 0844; the initials "MT" also are printed on the bottom of the order form, indicating the sale also was made by Marcus Turner. The fourth through seventh pages of Exhibit 18 indicates Samuel and Bernard Smullin were sold securities on or about April 21, 1988, and May 11, 1988 before Turner's registration with Hampton Securities. On the bottom of the order forms are the initials "MT" indicating the sale were made by Marcus Turner. Exhibit 18 indicates that customer Bob Robinson was sold securities on or about June 3, 1988, by a registered representative using the Hampton house account number. The order form has the initials "MT" printed by hand on the bottom of the page indicating that Respondent Turner made the trade, and did so prior to his date of registration with the Department. Exhibit 18 also demonstrates that customer George A. LaMarca purchased securities from a registered representative using house account number 0844; the initials "MT" are printed by hand on the bottom of the order form, and show the date of sale as May 19, 1988. Similarly, other customers, namely Timothy Kowal, Sr., Betsy Elliott, Samuel S. Duffy, and Gary L. Donatello were also sold securities by Respondent Marcus Turner using house account number 0844. These trades were all conducted prior to Respondent Turner's registration date with Hampton Securities, Inc. On August 2, 1988, approximately six days after Marcus Turner's registration became effective with the Department as a registered representative of Hampton, the customers noted in Exhibit 18, in addition to other customers, were transferred from house account number 0844 to the new registered representative number of Marcus Turner, 1686.The form used to do this, entitled "Salesman's Authorization and Release to Change Customer Account Executive" is signed by Turner. The use of the number for the house account on trades by Mr. Turner before his registration is a material false statement on all those order forms and confirmations. The house account number was used to conceal the trades by Turner before he was registered. Respondent Turner was paid $50,000.00 on July 1, 1988, ostensibly as a "sign on" bonus. On May 27, Respondent Turner was paid $1,500.00 by Hampton Securities, ostensibly as a "consulting fee." On May 18, 1988, Marcus Turner received a $2,500.00 check for "moving expenses." The moving expense check of $2,500.00 appears to be payment for moving a short distance within the City of Sarasota. These payments are disguised payments to Turner for conducting trades in securities before his registration with the Department as an associated person with Hampton Securities.
Recommendation The use of the house account to conceal unlicensed trading is serious misconduct, designed to mislead the public and the Department. Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding that Respondent Turner violated Sections 517.12(1) and 517.301(1)(a), (c), Florida Statutes, imposing an administrative fine of $5,000 on both counts, for a total fine of $10,000.00 and revoking any licenses or registration that Respondent Turner holds with the Department. RECOMMENDED this 12th day of December, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 12th day of December, 1991. COPIES FURNISHED: Deborah Guller, Esquire Office of Comptroller 111 Georgia Avenue, Suite 211 West Palm Beach, Florida 33401 Marcus Turner 6396 Midnight Cove Road #953 Sarasota, Florida 34242 Honorable Gerald Lewis, Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated August 14, 1989; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of the administrative complaint, Respondent was registered or eligible for registration as a service warranty sales representative in this state. The Respondent is currently registered or is eligible to be registered in this state as a service warranty sales representative. Prior to November 22, 1988, Respondent was employed by Comfort Air Conditioning, Inc. (Comfort). Respondent was not an officer of that company and did not have an ownership interest in that company. Respondent was employed as the sales representative for Comfort. The Department authorized Comfort to transact business as a service warranty association on October 25, 1985. Comfort had renewed its qualification for the period June 2, 1988 through June 1, 1989. The application for state registration was executed by Respondent on June 29, 1988. On or about November 22, 1988, Comfort surrendered its license to sell service warranties in the State of Florida. The letter executed by Comfort's president, Herbert Bell, was received by the Department on November 28, 1988, which became the effective date of surrender. Subsequent to that date, Comfort was not authorized to sell service warranties. Sometime prior to November 22, 1988, Respondent had authorized the use of his signature on printed forms which were mailed by Comfort to its service warranty customers or to its potential customers. The purpose of the form, a contract, was to secure the renewal of existing service agreements or to obtain new customers. The term of the service contract was for a period of one year. On or about November 22, 1988, Respondent knew that Comfort was not authorized to sell service warranties. Respondent believed that Comfort was entitled to service the contracts that it had issued or renewed prior to that date. Comfort mailed several thousand contracts to customers prior to November 22, 1988. Respondent did not have a list of the persons to whom the contracts were mailed. Respondent did not attempt to contact the persons who received the Comfort contracts to advise them that Comfort had surrendered its license. On November 23, 1988, Irving Weintraub executed the Comfort contract for warranty service and remitted a check in the amount of $127.20 payable to Comfort for the services requested. This check was deposited to Comfort's account on November 30, 1988. Mr. Weintraub was not aware that Comfort had surrendered its license. The contract executed by Mr. Weintraub bore Respondent's signature and was to run for the period January 1 through December 31, 1989. Mr. Weintraub did not receive service from Comfort for that period. On December 1, 1988, Reva Cole remitted a check in the amount of $127.20 payable to Comfort in connection with her service warranty agreement. Her agreement was to run from December 1, 1988 through November 30, 1989. The contract bore Respondent's name. Mrs. Cole did not receive service from Comfort for the period of her service warranty. On December 1, 1988, Ruth Schwartz remitted a check in the amount of $127.20 payable to Comfort in connection with her service warranty agreement. Mrs. Schwartz' agreement was to run from December 2, 1988 through December 1, 1989. This agreement also bore Respondent's name. Mrs. Schwartz did not receive service from Comfort for that period. Each of the customers named in paragraphs 8, 9, and 10 resided in a development known as Quadomain IV. This condominium complex is located in Hollywood, Florida, and was one of Respondent's marketing areas. On or about November 8, 1988, Respondent sent letters to unit owners at Quadomain. This letter solicited their service warranty business on behalf of Comfort and included an application form together with a price listing. In December, 1988, Respondent became licensed as a sales representative for Florida Appliance Service Technicians, Inc. (FAST), a service warranty company. In February, 1989, FAST wrote to unit owners at Quadomain to solicit their service warranty business. That correspondence represented that Respondent had become associated with FAST on December 21, 1988, and that FAST had purchased Comfort's records and computer equipment. The letter provided: As an introductory and transition special, we are offering, that if you renew your annual contract with us NOW, (to take effect after your present COMFORT contract expires) we will provide you service AT NO CHARGE for the unexpired portion of your present COMFORT contract for the same price and conditions you presently enjoy, with no interruption of service to you. A GREAT SAVING. Subsequent to the letter from FAST, Mrs. Cole and Mrs. Schwartz purchased service warranties from FAST. Respondent's primary efforts were to assure that FAST obtained as many of Comfort's customers as possible.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Office of the Treasurer, Department of Insurance enter a final order imposing an administrative fine against Respondent in the amount of $600.00. DONE and ENTERED this 16 day of March, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 16 day of March, 1990. APPENDIX TO CASE NO. 89-5704 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 5 are accepted. Paragraphs 6 and 7 are rejected as contrary to the weight of the evidence. Respondent allowed the use of his signature on the printed forms; however, Respondent did not Personally solicit the contract or sell the contract as Suggested in the proposed findings. Paragraphs 8 through 10 are accepted. Paragraphs 11 and 12 are rejected as contrary to the weight of the evidence. See the comment 2. above. Paragraphs 13 through 16 are accepted. Paragraphs 17 and 18 are rejected as contrary to the weight of the evidence. See comment 2. above. Paragraphs 19 through 25 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: Clyde W. Galloway, Jr. Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Jules Dwight Poiret 4163 Coral Springs Drive Fort Lauderdale, Florida 33065 Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact Terry G. Jewell is the sole proprietor of an unincorporated business, wherein Jewell engages in business as a real estate broker-salesman. His net worth is less than $2,000,000. In DOAH Case No. 87-2192, the Division filed an Administrative Complaint dated April 20, 1987, wherein the Division essentially alleged that Jewell was co-owner and agent for Sun Country Homes of North Florida, Inc., a corporation engaged in the business of constructing homes; that Jewell, as vice- president and agent for Sun Country Homes, entered into a contract with the Koblinskis to build their house; that Sun Country Homes received approximately $74,900.00 to build the home; that Sun Country Homes did not pay certain materialmen and contractors; and that Jewell did not pay the outstanding liens. The Division sought revocation and other penalties against Jewell's license as a real estate broker-salesman, alleging that Jewell was guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction. After hearing, a Recommended Order was entered by the undersigned on September 25, 1987, recommending dismissal of the Administrative Complaint. The recommendation was based on findings that Jewell's contacts with the Koblinskis were solely as an officer, co-owner and agent for Sun Country Homes of North Florida, Inc.; that all sums paid by the Koblinskis were to Sun Country Homes and were deposited to its corporate account; that the president of Sun Country Homes mismanaged the corporate funds and did not pay some of the subcontractors on Koblinskis' home, that Jewell quit the corporation then he found out about this; that Jewell did all he could to assist the Koblinskis once he had resigned from the corporation; that the president of the corporation disappeared with the Koblinskis' money; and that Jewell did not benefit from the funds paid by the Koblinskis to Sun Country Homes of North Florida, Inc. The recommendation was based on conclusions of law that the contract was between the Koblinskis and Sun Country Homes of North Florida, Inc.; that Jewell had no intent to deceive the Koblinskis; that it is well settled law that disciplinary action cannot be taken against a real estate broker's license for conduct not connected with the licensee's business as a broker; and that Jewell did not violate Section 475.25(1)(b), Florida Statutes, as alleged. The Final Order of the Division, through the Florida Real Estate Commission, adopted the Findings of Fact, Conclusions of Law and Recommendation in the Recommended Order and dismissed the Administrative Complaint. The affidavit which initiated this action was filed on February 5, 1988, and was later supplemented by the Petition for Small Business Party's Attorney's Fees and Costs. The affidavit, which was an application for an award of fees and costs, was timely, having been filed within 60 days after the date on which Jewell became a prevailing small business party. In this case, the 60 days is calculated from the date on the Certificate of Service showing mailing of the Final Order to the parties. See Section 57.111(4)(b)2, Florida Statutes. According to the affidavit of William C. Andrews, and the statements of account attached thereto, Jewell incurred legal fees of $3,252.50 and costs of $957.21. These fees and costs are found to be reasonable since the Division has not filed a counter affidavit or response questioning their reasonableness. According to the Petition, the disciplinary action in DOAH Case No. 87- 2192 was substantially unjustified at the time it was initiated: because the Administrative Complaint was an attempted disciplinary action taken against Petitioner's real estate broker-salesman's license for conduct not connected with the licensee's business as a broker-salesman, and there was a complete absence of evidence to show any wrong doing on the part of the Petitioner.
Findings Of Fact Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as facts: The Respondent, Shirley L. Kundsen, is a real estate broker, having been issued License No. 0048550. The Respondent, Robert S. Kingsland, is a real estate broker, having been issued License No. 0047741. The Respondent, Kingsland-Henry and Associates, Inc., is a corporate real estate broker having been issued License No. 0047745. In 1972, Charles Pullen and Beverly Pullen owned Lots 84, 85, 86, 87 and 88, Kissimmee Heights Subdivision, in Osceola County, Florida. In 1972, Charles Pullen's sister, Myrtle Saulsbury, and her husband, Frank, owned lots 89, 90, 91, 133 and 134 in Kissimmee Heights Subdivision, Osceola County, Florida. Myrtle Saulsbury died on January 27, 1975, and Mr. Frank Saulsbury subsequently remarried to Mary E. Saulsbury. In 1972, the Respondent, Shirley L. Kundsen, then a salesperson for Kingsland-Henry and Associates, Inc., presented a contract to Mr. and Mrs. Pullen for the purchase of their five lots for a price of $12,500.00 At approximately the same time, the Respondent, Shirley L. Kundsen, presented a contract to the Pullens offering to purchase the lots owned by the Saulsburys. This contract was delivered to the Saulsburys by Mr. Pullen. Upon initially being presented the contract for purchase of their lots, the Pullens contend that they refused to accept the offer and asked that the purchase price be raised to $17,500.00, with no real estate commission payable by the seller. They contend that they offered any excess over that price to Shirley L. Kundsen and Kingsland-Henry and Associates, Inc., in lieu of a real estate commission. Shirley L. Kundsen subsequently crossed out the price of $12,500.00, and replaced it with the figure $17,500.00. With this change the contract was initialed by Mr. and Mrs. Pullen. The Saulsbury contract was drafted to indicate a purchase price of $17,500.00 as well. Mr. and Mrs. Pullen subsequently signed the contract, and contend that upon Shirley L. Kundsen's request, they placed the date "way over on the right hand side of the line", thereby leaving room for the later insertion of a commission percentage in the space to the left. The Saulsburys also subsequently signed their contract. At the time these contracts were executed by the Pullens and by the Saulsburys, they contend that there was no reference to any commission payable to Kingsland-Henry and Associates, Inc. The contracts with Mr. and Mrs. Pullen and with Mr. and Mrs. Saulsbury have been received in evidence as Petitioner's Exhibits 1 and 3. The language now appearing in these contracts requiring the payment of a 10 percent commission to Kingsland-Henry and Associates, Inc., was inserted after the signatures of the Sellers was placed on the contracts. This fact was established by evidence presented by a handwriting expert. The Pullens and the Saulsburys first learned of the addition of the real estate commission at the time of closing, and after learning of this addition they refused to close on the contracts. The Pullens and the Saulsburys never agreed to pay for any survey work performed for or by the prospective purchaser of the properties, and paragraph D on page 2 of the contracts obligated the buyer to bear this expense. When attempting to sell their property years later, in 1978, the Saulsburys, and subsequently the Pullens, learned that their property had been encumbered by recorded Affidavits prepared at the direction of Respondent, Robert S. Kingsland. Both Mr. and Mrs. Saulsbury's broker, and their title insurance agent, dealt directly and solely with the Respondents, Robert S. Kingsland and Kingsland-Henry and Associates, Inc., in attempting to obtain the release of the lots encumbered by these Affidavits. The Affidavits had been recorded in order to preclude sale of the lots in question to another purchaser without payment to Robert S. Kingsland for expenses incurred in having the subject properties surveyed. Robert S. Kingsland refused to release the lots encumbered by the Affidavits until he had been reimbursed for the expense of the surveys. The Saulsburys paid $1,100.00, or $220.00 per lot for their five lots, to Robert S. Kingsland. Thereupon, the property of the Saulsburys was released by Quit- Claim Deed. The Saulsburys have requested a refund of the $1,100.00 paid to Robert S. Kingsland and Kingsland-Henry and Associates, Inc., but this request has been refused. The Affidavit encumbering the property owned by the Pullens has never been released, although requests have been made by the Pullens, and the property remains encumbered to this time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Shirley L. Kundsen, be found guilty of violating 475.25(1)(b), Florida Statutes; and that her license be suspended for six months. And it is further RECOMMENDED that the Respondents, Robert S. Kingsland and Kingsland-Henry and Associates, Inc., found guilty of Violation of 475.25(1)(b) and 475.25(1)(j), Florida Statutes; and that their licenses be revoked, and that an administrative fine of $1,000.00 be imposed upon these Respondents. THIS RECOMMENDED ORDER entered on this 12th day of March, 1982, 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 12th day of March, 1982. COPIES FURNISHED: James S. Quincey, Esquire Post Office Box 1090 Gainesville, Florida 32602 A. Wayne Rich, Esquire Post Office Box 1911 Orlando, Florida 32802 Shirley L. Kundsen Post Office Box 1888 Kissimmee, Florida 32741
The Issue The issue is whether Respondent provided the Florida Real Estate Commission with false information in his application to take the broker's examination, in violation of Sections 475.25(1)(b)and (l), Florida Statutes, or whether he is guilty of misrepresentation, false promises, or dishonest dealing by trick, scheme or device in any business transaction, in violation of Section 457.25(1)(b), and, if so, what penalty should be imposed.
Findings Of Fact Respondent became a licensed real estate salesperson on September 27, 1993. On this date, he placed his license with Brokers Realty of Naples, Inc. Respondent has not pursued the real estate profession as his primary business. He has not bought or sold any real estate under his license and has not put any time into it. Respondent's profession is the ministry. He as been a minister for 20 years and has been the senior pastor of Gulf Shore Community Church for five years. Respondent is a member of the Christian Missionary Alliance. In June 1993, Respondent was assigned the responsibility of forming a church in Naples. Respondent's wife was more interested than Respondent in pursuing a real estate career, and Respondent took the course with her more for moral support. While in class, they met a broker with whom they agreed they would place their salesperson's licenses. After receiving their salesperson's licenses, Respondent and his wife placed their licenses under the broker, as they had agreed. However, the broker closed her office after a couple of months. In the meantime, Respondent's wife had met David Bayer of Century 21 Old Naples Realty, Inc. (Century 21). In November 1993, she decided to place her license with Century Respondent agreed that he would do the same. Busy with starting a church, Respondent did not attend to the details of transferring his license. He believed that someone else was doing this for him, but no one did. Respondent's inattention allowed his licensing status to lapse. Unknown to Respondent at the time, his salesperson's license became invalid on November 16, 1993, for lack of an employing broker, according to Petitioner's records. Respondent's license remained invalid until March 31, 1995, when it became inactive, according to Petitioner's records. Respondent's wife later decided to pursue her broker's license. Again for moral support and to help her with preparing for the examination, Respondent agreed that he would also apply for his broker's license. In attempting to obtain the necessary paperwork to take the broker's examination, Respondent discovered in late August 1995 that Petitioner's records had not been updated to reflect the transfer of his license to Century 21. It appears that Respondent was not yet aware of the other above-described impediments to licensure. Trying to update Petitioner's records, Respondent submitted the two forms that are the subject of the present disciplinary proceeding. The first form was a Request for License or Change of Status, which Respondent faxed to Petitioner. Respondent completed the top section of this form, which is to be completed by the licensee. He signed it beside a typed-in date of December 30, 1993, which was the effective date of the transfer of his license to Century 21. Petitioner has not objected to anything in this section. The next section is to be completed by the broker/employer or nonlicensed owner/employer. At the bottom of this section are the words, "Broker or Non-Licensed Owner Sign Here:". Respondent hand-wrote Mr. Bayer's name in what he described as printing, but, on a blurry fax, could be mistaken for a signature for someone unfamiliar with Mr. Bayer's signature. Beside Mr. Bayer's name "December 30, 1993" was typed in. Petitioner has objected to Respondent's undisclosed signing of Mr. Bayer's name on this form. On September 11, 1995, Petitioner received another Request for License or Change of Status form. The bottom section of this form was signed by Mr. Bayer at the bottom in script considerably different from that of the earlier form. The top section of this form is filled out exactly as the earlier form, with Respondent's signature beside the typed-in date of "December 30, 1993." Petitioner objected to the typed-in date because it was nearly two years prior to the date that the form was filed. As to the second objection, there is nothing in the record to suggest that Respondent was trying to file paperwork with Petitioner in 1995 that was misdated so as to suggest that it was filed two years earlier. The 1993 date was the effective date of the license transfer. The form does not state "Date Signed"--only "Date." There is no place on the form to show an earlier effective date. Not only was Respondent not trying to mislead Petitioner with the date on the form, but it is almost impossible to find that the date was misleading. There is no way to conceal that the forms were filed in September 1995, not December 1993. Respondent even sent the second form certified, return receipt requested, so as to document further that the form was sent in 1995. In the absence of another place on the form to show the effective date of the transfer, Respondent's use of the date line to show the effective date was reasonable and not misleading. Thus, Respondent did not intend to mislead with this date entry, and no one could reasonably have claimed to have been misled by this date entry. Interestingly, Petitioner did not claim that Respondent's first form, which had a similar date entry, was misleading as to the date. As to the first form, Petitioner's objection is more substantial: Respondent signed Mr. Bayer's name without disclosing that he was doing so. Mr. Bayer testified that he would have signed the form in December 1993 or September 1995 because Respondent in fact had transferred his license to Century 21 in December 1993. The record does not establish that Mr. Bayer authorized Respondent to sign the form before he did so, but the record clearly established that he ratified the signature. A few days after the first form was faxed, Mr. Bayer signed a form and sent it to Petitioner. Clearly, Respondent's handling of the signature of Mr. Bayer does not rise to misrepresentation, false promises, or dishonest dealing by trick, scheme, or device. There was not fraudulent intent. The question is closer as to whether Respondent's handling of the signature rises to the level of making or filing a false report or record which the licensee knows to be false. Given the standard of evidence imposed upon Petitioner, there is considerable doubt whether the factual basis supporting a finding that Respondent signed as the agent of Mr. Bayer, who immediately ratified the act to eliminate any doubt as to its authorization, is sufficient to find that Petitioner has proved by clear and convincing evidence that Respondent knowingly made or filed a false report or record. However, the parties stipulated to a violation of at least one count, and the administrative law judge accepted the stipulation.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order either dismissing the Administrative Complaint or finding Respondent guilty of knowingly making or filing a false record or report and issuing a notice of noncompliance. DONE AND ENTERED this 27th day of October, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 27th day of October, 1998. COPIES FURNISHED: Steven D. Fieldman, Chief Attorney Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Jeanette Martinez Porter, Wright, Morris & Arthur 4501 Tamiami Trail North, Suite 400 Naples, Florida 34103 Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
