The Issue The Florida Real Estate Commission, herein sometimes called the Plaintiff or the Commission, seeks to revoke or suspend the license of the Defendant, Alan Leavitt, a registered broker, based on allegations that he violated Subsections 475.25(1)(a) and (b), Florida Statutes, as alleged in its administrative complaint filed on December 9, 1976. As is set forth more particularly in its two count administrative complaint, the Commission alleges that the Defendant, while employed as an active broker for Special Realty Corp., acted in his own behalf by advertising and selling several unimproved lots located in Walton County, Florida. It is further alleged that the Defendant made statements in an effort to sell said lots indicating that the lot sizes were 50 feet wide and 150 feet deep, whereas in actuality the lots were only 25 feet wide and 105 feet deep. The complaint alleges that the purchaser consummated the sale for the above referred lots based on the representations made respecting the lot sizes and upon subsequent examination found that the lot sizes were substantially less whereupon the purchaser demanded a refund from Defendant, to no avail. Based thereon, it is alleged that the Defendant is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, etc., in a business transaction in violation of Subsection 475.25(1)(a), Florida Statutes. In count two it is alleged that the Defendant, while registered as an active real estate broker, permitted Isaac Shelomith and Barry Shelomith, registered real estate salesmen, to unlawfully operate as real estate salesmen out of his offices and encouraged them to engage in the sale of lots in Walton County, Florida by means of unscrupulous and unlawful methods involving fraud, and other breaches of trust in violation of Subsection 475.25(1)(a), and (b), Florida Statutes. For all of the foregoing reasons, the complaint alleges that the Defendant is guilty of a course of conduct or practices which show that he is so dishonest and untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not safely be entrusted to him, in violation of Subsection 475.25(3), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor, the pleadings and the admissions contained therein including the arguments of counsel, I make the following: The Defendant, who holds license number 0051095, was a registered real estate broker during times material to the allegations contained in the administrative complaint filed herein. During early October, 1975, Defendant placed in the classified section of the Miami Southside Newspaper, an ad relative to real property located in Walton County, near DeFuniak Springs. On October 14, 1975, Mr. Lionel G. Rush, an unemployed marketing executive, responded to the aforesaid ad to inquire about the advertised lots. He later purchased four lots from the Defendant for the sum of $1,500. The four lots were described in a warranty deed dated October 17, 1975, from Defendant to Lionel G. Rush and Susie M. Rush, his wife. (See Commission's Exhibit #4). Mr. Rush stated that the Defendant advised him that each individual lot was 50 feet in width and 150 feet in depth and it was based on these representations that he purchased the four lots described in the above referenced warranty deed. Mr. Rush, after purchasing the lots, investigated the lot sizes, approximately three weeks later by calling the county clerk for Walton County who advised that the lot sizes were approximately 25 by 105 feet each. He thereafter contacted the Defendant who checked to determine the accuracy of the lot sizes and was able to determine that the lot sizes were 25 by 105 feet as Mr. Rush had informed. Mr. Rush indicated that but for the inaccurate lot sizes, he was pleased with the property purchased from the Defendant. Mr. Rush testified that he advised the Defendant that there were in his opinion, several options available to satisfy or otherwise cure his purchase problems. He first suggested that the Defendant refund a portion of his purchase money to reflect the actual lot sizes conveyed or alternatively Defendant deed over to him another four lots to compensate for the alleged inadequacy of the lot sizes. Alan Leavitt, the Defendant herein, acknowledged that he sold four lots to Mr. Lionel Rush and his wife in Country Club Heights in Ft. Walton Beach. He denied that the lot sizes were recorded by him or upon his direction as the description is now reflected on the warranty deed entered herein. (See Exhibit 4). Defendant testified that after selling the lots to the Rushes, he received a phone call approximately three weeks later from Mr. Rush complaining about the lot sizes. Mr. Rush expressed his desire to get a refund of the purchase money paid or to seek some other restitution. Defendant checked into the matter and was able to determine that the lot sizes were in fact 105 feet by 100 feet. When Defendant was unable to resolve the matter with the Rushes, he offered to return their money back and in fact purchased a money order for the full amount of the purchase price and agreed to absorb all incidental costs connected with the purchase of the property. He stated that the refund offer was made after Mr. Rush tried to bargain over price and in his opinion was trying to get the lots for what was in his opinion, a "ridiculously low price." He testified that when he discerned this, he had no further dealings with Mr. Rush and was only interested in refunding the purchase money price once the Rushes executed a proper deed returning the property to him. He (Defendant) denied ever misrepresenting the lot sizes. Isaac Shelomith, a registered real estate salesman during times material, was called and denied having any employment relationship with the Defendant in any manner during times material to the allegations contained in the administrative complaint filed herein.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the administrative complaint filed herein be dismissed in its entirety. DONE AND ENTERED this 1st day of June, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David B. Javits, Esquire 3628 Northeast Second Avenue Miami, Florida 33137 Alan Leavitt 7100 Fairway Drive Miami Lakes, Florida 33014 Bruce I Kamelhair, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the exhibits received into evidence, I make the following: The Defendant is a real estate salesman registered with the Commission and currently holds registration certificate number 0151729 (non-active). Defendant applied for registration as a real estate salesman by execution of a sworn application with the Commission on March 4, 1975 and was issued an initial registration certificate as such effective September 29, 1975. In response to the question as to whether or not she had ever been arrested for the commission of any offense against the laws of this state, she responded that "in 26years of living, I could honestly say I had (sic) never been arrested, either justly or unjustly." (See Commission's Exhibit #1). Exhibits introduced and received during the course of the hearing clearly reveal that the Defendant was arrested on January 21, 1975 and charged with engaging in the unlawful practice of massage for a fee or gratuity without a certificate or registration in violation of Section 480.02(1), Florida Statutes; and for the unlawful receipt of a fee for touching or offering to touch the sexual parts of another for the purpose of arousing or gratifying sexual desire. Officer White, a police officer for Broward County was called and credibly testified that the Defendant, Sharon Lee (Blackburn) Jarvis is the same Sharon Lee Blackburn that was arrested on January 21, 1975, and stated that the charges were nolle prosequi because of the Defendant's cooperation with the police on other related charges. Michael H. White, a police officer with the City of Ft. Lauderdale, was called and testified that he arrested the Defendant on June 13, 1975 and charged her (Defendant) for the offense of "indecent assault upon a child". On June 2, 1976 the Defendant entered a plea of nolo contendre to the above offense and was placed on probation for a period of six years. (See Commission's Composite Exhibit #5) Although Defendant complained that she was not served with copies of the administrative complaint and notice of hearing, evidence reveals that such was mailed to her at her last known address. It was noted that the complaint and notice of hearing which was mailed by the Commission was returned as "undeliverable". These documents were mailed to Defendant at her last known address. A registrant is required to immediately notify the Commission of address changes. (Chapter 475.23, Florida Statutes, and Rule 21V-9.01, F.A.C.) This the Defendant failed to do. As an aside, evidence reveals that Defendant received a copy of the notice of hearing sent by the undersigned. Accordingly, Defendant lacks standing to now complain that she did not receive notice of the proceedings herein. Based on the foregoing findings of fact, I make the following:
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: 1. That the Defendant's registration with the Florida Real Estate Commission as a real estate salesman be revoked. RECOMMENDED this 9th day of June, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Hellender violated the provisions of Section 475.25(1)(a), Florida Statutes.
Findings Of Fact Hellender is a registered real estate broker holding license number 0038269 issued by the Florida Real Estate Commission. Hellender had a listing for the sale of real property owned by Horace E. and Margaret C. Young. An offer to lease with option to purchase was made by Richard W. and Diane B. Milligan through their realtor, Susan Seligman, who was in contact with Seligman several times November 26 concerning the availability of the property and terms of the lease-purchase agreement. Both the Youngs and the Milligans did not live in the Orlando area where the two realtors and property were located. Susan Seligman, a broker-salesperson, presented Ralph E. Hellender with a Contract for Sale and Purchase when she met with Hellender between 6:00 and 7:00 p.m. on the evening of November 26, 1976. This offer, which was received into evidence as Exhibit 1, expired at 12:00 noon on November 27. Hellender took the contract and indicated that he would communicate the offer to the Youngs. Susan Seligman did not accompany Hellender to communicate the offer as is the general custom, because she needed to pick up her children from a football game that evening. Mrs. Ingrid Hellender, a broker salesperson, received a call later on the evening of November 26, 1976, from Susan Seligman. The general topic of the call was the fact that the contract which Seligman had given Mr. Hellender earlier that evening provided for conventional financing of the purchase, and Seligman had second thoughts about the Milligans' desires on financing. She requested that she be given the opportunity to check with the Milligans to determine whether they intended to use conventional or FHA financing. At this point a conflict developed in the testimony of Mrs. Seligman and Mrs. Hellender regarding whether Mrs. Seligman requested that Mr. Hellender hold the contract or whether Mrs. Seligman requested that he present the offer with reservations concerning the nature of the financing. In any event, Mrs. Hellender advised her husband to hold the contract. Similarly, a conflict exists in Mr. Hellender's and Mrs. Seligman's testimony concerning whether Hellender said that the offer has been accepted by the Youngs. Mrs. Seligman stated that Mr. Hellender advised her on November 27, 1976, that the Youngs had accepted the offer. Hellender stated that he did not present the offer and therefore there was no basis for him to communicate an acceptance to Mrs. Seligman and did not communicate an acceptance to her. It should be particularly noted that Mrs. Seligman stated that on November 27 she had Mr. Hellender agreed that the Milligans should execute a new contract on Hellender's forms when the Milligans were to be in Orlando on December 1, 1976. It is also noted that Mrs. Seligman did not request telegraphic confirmation of the acceptance by the Youngs of the offer which she initially submitted to Mr. Hellender, although telegraphic confirmation is the generally accepted practice when dealing with an out-of-city seller and was not standard practice in the real estate firm with which Mrs. Seligman worked. The Hearing Officer discounts the testimony of Mrs. Seligman that Hellender told her the Youngs had accepted the offer because she did not request written confirmation of the acceptance, and because Mrs. Seligman stated that a second written offer was to be prepared on December 1, 1976. All the realtors who testified stated that it was the custom to obtain telegraphic confirmation of an offer from an out-of-town seller. Mr. Seligman, the broker for Mrs. Seligman's company, stated this was the general procedure for his company. Although the record is unclear whether Mrs. Seligman talked with Mr. Hellender before noon or after noon, she was aware the offer expired at noon November 27 and she did not press for written confirmation of acceptance before noon. Instead, she agreed to the preparation of a second offer is totally contrary and repugnant to any theory of acceptance of the first offer. Therefore, the Hearing Officer finds that there was no acceptance of the first offer communicated by Hellender to Mrs. Seligman. Mrs. Seligman may have formed the opinion that there was an acceptance because Mr. Hellender agreed to the terms presented in the first offer, but her agreement to a second offer to be prepared is in fact and law inconsistent with any assertion that the first offer was accepted. Mrs. Seligman stated, that it is clear from the actions of Mr. Hellender, that they expected a second contract to be presented in behalf of the Milligans. This explains his call to Mrs. Seligman advising her on December 5 that there was activity of the property. It also explains why December 6 he did accept a second offer on the property which was presented by Joe Deligna which he and Delinga communicated to the Youngs together as is the general custom after no offer was presented by the Milligans on December 1. Lastly, it explains why Hellender contacted Mrs. Seligman immediately after the Youngs had accepted the offer by the Maccagnanos and confirmed it telegraphically.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Ralph E. Hellender. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of March, 1978. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Bruce I. Kamelhair, Esq. 400 West Robinson Street Orlando, Florida 32801 Mark A. Koteen, Esq. Post Office Box 3431 Orlando, Florida 32802
The Issue The issue to be resolved herein concerns whether the Petitioners are entitled to an award of attorney's fees in this proceeding. Embodied in that general issue are questions concerning whether the Petitioners are the prevailing parties; whether they meet the definition of "small business" parties, including the net worth amounts, enumerated in Section 57.111, Florida Statutes, as well as whether the disciplinary proceeding against both Petitioners was "substantially justified". See Section 57.111(3)(e) , Florida Statutes.
Findings Of Fact The Respondent is an agency of the State of Florida charged with licensing and regulating the practices of real estate salesmen and brokers by the various provisions of Chapter 475, Florida Statutes. Included within those duties is the duty to investigate conduct by realtors allegedly in violation of Chapter 475 and related rules and to prosecute administrative penal proceedings for which probable cause is found as a result of such investigations. At times pertinent hereto, both Ms. Maxwell and Ms. Cosyns, (then Pauline Sealey) were licensed realtors working as independent contractors for Mariner Properties, Inc. and V.I.P. Realty Inc. The complete file of the underlying proceeding DOAH Case No. 86-0140, was stipulated into evidence. That file included the Administrative Complaint filed against these Respondents and the Recommended and Final Order, which Final Order adopted the Recommended Order. The findings of fact in that Recommended Order are incorporated by reference and adopted herein. During the Petitioner's case, counsel for Petitioner voluntarily reduced the attorney's fees bills for both Petitioners such that Ms. Maxwell's bill is the total amount of $2,695.50 and Ms. Cosyns' bill is $17,200, rather than the original amounts submitted in the affidavit. Respondent acknowledged in its proposed Final Order that the fees and costs submitted by the Respondent were thus reasonable. The testimony the Petitioners presented through depositions, transcripts of which were admitted into evidence into this proceeding, was unrefuted. That testimony demonstrates that both Ms. Cosyns and Ms. Maxwell were prevailing parties in the administrative proceeding referenced herein brought by the Respondent, Department of Professional Regulation. They were individually named as Respondents in the Administrative Complaint whereby their professional licenses were subjected to possible suspension or revocation for alleged wrong doing on their part. There is no dispute that they were exonerated in that proceeding and are thus prevailing parties within the meaning of Section 57.111, Florida Statutes. The Petitioners are also "small business parties". In that connection, they both were independently licensed Real Estate professionals during times pertinent to the underlying proceeding and were acting in the capacity of independent contractors for all the activities with which the administrative complaint was concerned. Each established that her net worth is below the limit provided by Section 57.111 as an element of the definition of "small business party". The reasonableness of the fees having been established in the manner found-above and the Petitioners having established that they meet the definitional requirements of prevailing small business parties, there remains to be determined the issue of whether the proceedings against the two Petitioners were "substantially justified", that is, whether the proceeding had a "reasonable basis in law and fact at the time it was initiated by a State agency." See Section 57.111(3)(e), Florida Statutes. The facts concerning each Petitioner's case regarding the three counts of the Administrative Complaint relating to them are as found in the Recommended Order incorporated by reference herein. Respondent Maxwell was charged in the complaint with having worked in conjunction with an office manager, Mr. Hurbanis of V.I.P. Realty, in conspiring with him to submit a fraudulent real estate sales contract to a lending institution for purposes of financing. This allegedly involved submitting a contract to the lending institution with an inflated purchase price in order to secure one hundred percent financing, the scheme being more particularly described in that portion of the findings of fact in the Recommended Order related to Jean Maxwell. In fact, Ms. Maxwell did not work in the realty office as charged in the Administrative Complaint, but rather was employed by Mariner Properties, which may have been a related company. The contract in question, although alleged to be fraudulent was, in fact, a bona fide contract which was a legitimate part of the Real Estate transaction submitted to the bank for financing purposes, about which the bank was kept fully advised. All details of the transaction were disclosed to the lender. Maxwell was specifically charged with concealing the true contract from the lender in order to enhance the percentage of the purchase price that the bank would finance, done by allegedly inflating the purchase price in a second contract submitted to the bank. It was established in the disciplinary proceeding that no such concealment ever took place. In fact, Ms. Maxwell was purchasing a lot from her own employer, Mariner Properties. Two contracts were indeed prepared for the purchase of Lot 69, a single family lot on Sanibel Island. In fact, however, the difference of $42,875 and $49,500 in the stated purchase price, as depicted on the two contracts, was the result of continuing negotiations between Ms. Maxwell and the seller, who was also her employer. The difference in the two prices depicted on the contracts was the result of, in effect, a set-off to the benefit of Ms. Maxwell, representing certain employee discounts and real estate commission due from the employer and seller to Ms. Maxwell, the purchaser. As Petitioners' composite Exhibit 5 reflects, the lender involved, North First Bank of Ft. Myers, Florida, was fully apprised of all the details concerning this transaction at the time it was entered into and the loan commitment extended and closed. Mr. Allan Barnes, the Assistant Vice President of North First Bank revealed, in the letter contained in this exhibit in evidence, that there was no concealment or misrepresentation of the facts to his institution by Ms. Maxwell. This letter is dated April 18, 1984. The other related letter in that exhibit, of May 2, 1984 from attorney Oertel to attorney Frederick H. Wilson of the Respondent agency, thus constitutes notice to the agency well before the complaint was filed, that no concealment or misrepresentation to the lender involved had occurred and the charges were requested to be dismissed. In spite of the fact that the agency was on notice of this turn of events well before the filing of the Administrative Complaint, it proceeded to file the complaint and to prosecute it all the way up to the date of hearing, requiring Ms. Maxwell's attorney to attend the hearing to defend her interests. At the hearing, counsel for the Department acknowledged that there was no basis for prosecuting Ms. Maxwell and voluntarily dismissed the complaint as to her. The Respondent's witness, Investigator Harris, in his deposition taken September 11, 1984, acknowledged that he did not discuss any details concerning the investigation, with attorney Frederick Wilson, who prepared the complaint, nor did he confer with him by telephone or correspondence before the filing of the complaint. Therefore, the complaint was prepared solely on the basis of the investigative report. The investigative report came into evidence as Respondent's Exhibit 1. It reveals that Mr. A. J. Davis the president of Mariner Group and Mariner Properties, who was Jean Maxwell's employer and the owner of the lot in question, signed one contract and his Executive Vice President signed the other. In spite of this, the investigative report does not reveal that the investigator conferred with either Ms. Maxwell, or the sellers concerning this transaction. He conducted a general interview of A.J. Davis concerning the alleged "problem" in his office of "double contracting," but asked him no questions and received no comment about the Jean Maxwell transaction whatever. Nor did the investigator confer with Mr. Allen Barnes or any other representative of North First Bank. If the investigation had been more complete and thorough, he would have learned from Mr. Barnes, if from no one else, that the bank had knowledge of both contracts and all details of the transaction underlying them and there had been no concealment or misrepresentation of the facts regarding the transaction by Ms. Maxwell. This information was learned by attorney Oertel as early as April 18, 1984 by Mr. Barnes' letter, referenced above, and it was communicated to the agency by Mr. Oertel on May 2, 1984. Nevertheless, the complaint was filed and prosecuted through to hearing. Therefore, the prosecution and filing of the Administrative Complaint were clearly not substantially justified. If the Department had properly investigated the matter it would have discovered the true nature of the transaction as being a completely bona fide real estate arrangement. Former Respondent, Pauline Sealy Cosyns was charged with two counts, III and V, in the Administrative Complaint at issue. One count alleged, in essence, that Ms. Sealey had engaged in a similar fraudulent contract situation regarding the sale of her residence to a Mr. and Mrs. Thomas Floyd. The evidence in that proceedings revealed no concealment of any sales contract occurred whatever with regard to the lending institution or anyone else. The facts as revealed at hearing showed Ms. Cosyns and the Floyds, through continuing negotiations after the original sales contract was entered into, amended that contract and executed a second one, in order to allow Ms. Cosyns to take back a second mortgage from the Floyds. This was necessary because Mr. Floyd, an author, was short of the necessary down payment pursuant to the terms of the original contract, because his annual royalty payment from his publishers had not been received as the time approached for closing. The second contract was executed to allow for a second mortgage in favor of the seller, Ms. Cosyns, in order to make up the amount owed by the Floyds on the purchase price agreed upon, above the first mortgage amount. The testimony and evidence in the disciplinary proceeding revealed unequivocally that the lending institution, Amerifirst Mortgage Company, was fully apprised of the situation and of the reason for the two contractual agreements. The $24,000 second mortgage in question is even depicted on the closing statement issued by that bank. There was simply no concealment and no effort to conceal any facts concerning this transaction from the lender or from anyone else. The investigation conducted was deficient because the investigator failed to discuss this transaction with the lender or with the purchasers. He discussed the matter with Ms. Sealy-Cosyns and his own deposition testimony reveals, as does his investigative report, that he did not feel that he got a complete account of the transaction from her. She testified in her deposition, taken prior to the instant proceeding, that she indeed did not disclose all facts of the transaction to him because she was concerned that he was attempting to apprehend her in some "legal impropriety". Therefore, she was reluctant to be entirely candid. The fact remains, however, that had he conducted a complete investigation by conferring with the lender and the purchasers, he would have known immediately, long before the Administrative Complaint was filed and the matter prosecuted, that there was absolutely no basis for any probable cause finding that wrong-doing had occurred in terms of Section 475.25(1)(b), Florida Statutes. Thus, the facts concerning the prosecution as to Count III against Pauline Sealy-Cosyns, as more particularly delineated in the findings of fact in the previous Recommended Order, reveal not only that Ms. Cosyns was totally exonerated in the referenced proceeding, but that there was no substantial basis for prosecuting her as to this count at all. Concerning Count V against Ms. Cosyns, it was established through the evidence at the hearing in the disciplinary case that she was merely the listing agent and did not have any part to play in the drafting of the contract nor the presenting of it to the lender. Because there was no evidence adduced to show that she had any complicity or direct involvement in any fraudulent conduct with regard to the transaction involved in Count V of the Administrative Complaint at issue she was exonerated as to that count as well. It is noteworthy here that a statement was made by counsel for the agency, appearing at pages 20 and 21 of the transcript of the proceeding involving the Administrative Complaint, which indicates that the agency, based upon its review of certain documents regarding Counts III and V, before hearing, felt that indeed there might not be a disputed issue of material fact as to Mrs. Cosyns. The agency, although acknowledging that a review of the documents caused it to have reason to believe that it was unnecessary to proceed further against Ms. Cosyns nevertheless did not voluntarily dismiss those counts and proceeded through hearing. Be that as it may, the investigation revealed that Ms. Cosyns acknowledged that she knew that there were two contractual documents involved, but the investigation also revealed that Ms. Cosyns was only the listing agent. The selling agent was Mr. Parks. The investigation revealed through interviews with Ms. Cosyns, Mr. Parks and Mr. Hurbanis, the office Manager of V.I.P. Realty, that Ms. Cosyns, as listing agent, was merely present when the offer from the buyers was communicated to the office manager, Mr. Hurbanis, and ultimately to the sellers, the Cottrells. There was no reason for the investigator to believe that Ms. Cosyns had anything to do with the drafting of the contracts nor with the communication of them to the lending institution involved. That was done by either Mr. Parks or Mr. Hurbanis or by the buyers. The investigation (as revealed in the investigative report) does not show who communicated the contract in question to the lender. The investigation was simply incomplete. If the investigator had conferred with the buyers, the sellers and especially the lender, he could have ascertained-whether the lender was aware of all the facts concerning this transaction and whether there was any reason to believe that Ms. Cosyns had anything to do with the arrangement and the details of the transaction. It was ultimately established, by unrefuted evidence at hearing, that indeed Ms. Cosyns did not have anything to do with the transaction, nor the manner in which it was disclosed to the lender. The fact that she was aware that two contracts had been prepared did not give a reasonable basis for the investigator to conclude that she had engaged in any wrong-doing. The report of his interviews with Ms. Cosyns, Mr. Hurbanis and Mr. Parks, as well as Donna Ross, does not indicate that he had a reasonable basis to conclude that Ms. Cosyns had engaged in any fraudulent conduct with regard to the transaction, including the conveyance of a bogus contract to the lending institution involved, nor for that matter, that Mr. Hurbanis or Mr. Parks engaged in such conduct. In order to ascertain a reasonable basis for concluding whether Ms. Cosyns was involved in any wrongful conduct, he would have had to obtain more information than he did from these people or confer with the lender, the buyer or the seller, or all of these approaches, before he could have a reasonable basis to recommend to the prosecuting agency that an Administrative Complaint be filed against her concerning this transaction. In fact, he did not do so, but the Administrative Complaint was filed and prosecuted through hearing anyway, causing her to incur the above-referenced attorney's fees. It thus has not been demonstrated that there was any substantial basis for the filing and prosecution of Count V of the Administrative Complaint against Ms. Cosyn. Thus she is entitled to the attorneys fees referenced above with regard to the prosecution of the Administrative Complaint in question.
Findings Of Fact At all times pertinent to the issues herein the Respondent, Linda H. Abraham, was licensed by the State of Florida as a real estate broker under license number 0323486. During the months of February and March 1983 Martha L. Tew owned a parcel of waterfront property located in Panama City Beach which was identified as being for sale by a sign on the property reflecting her husband's real estate company. Her husband was Ronald Eugene Tew and Mrs. Tew also held a salesman's license. Mr. Tew was contacted by Gregory A. Peaden, a contractor and developer in the Panama City Beach area on several occasions prior to March 1983 with offers to purchase the Tew property. The contacts with Mr. Peaden subsequently culminated in a contract dated March 8, 1983, between Greg Peaden, Inc., and the Tews in the amount of, initially, $180,000.00. During the negotiations for the property, Mr. Peaden had introduced the Respondent to the Tews as his broker. When, at the time of Use contract, Mr. Peaden advised the Tews he wanted Respondent to get a commission for the sale, Mr. Tew refused to pay any commission indicating that Respondent had performed no service for him; that he, Tew, was a broker himself; and that he had no intention of paying any commission to the Respondent or to anyone, for that matter. After some further negotiation, a second contract was prepared and agreed upon wherein the contract price was raised to $189,000.00 and the Respondent's commission was to be paid with the additional money from Mr. Peaden. The contract in question executed by the parties on March 8, 1983, reflected that the sum of $5,000.00 deposit was paid to Linda Abraham, Inc., by check. Mr. Tew contends that at this point he was led to believe that Respondent had the $5,000.00 check and, he contends, he would not have signed the contract if he had known that the check had not been delivered and placed in Respondent's escrow account. The actual signing of the contract took place in Respondent's office, a mobile home which she shared with Mr. Peaden's business. This trailer home was described as having Mr. Peaden's office on one end, and Respondent's on the other, with the living-kitchen area in the middle used as a reception area for both businesses. Mr. Peaden contends that once the contract was signed by the Tews, he gave a check drawn on one of his business accounts, that of Peaden and Guerino, a property management company he owned, to his secretary, Judy White, to deposit in Respondent's escrow account and thereafter promptly forgot about the matter until the date scheduled for closing, two months in the future. Ms. white, on the other hand, contends that Mr. Peaden at no time gave her a check for $5,000.00 to deposit to Respondent's escrow account. It is her contention that when she received the contract after it was signed, she, on her own, inserted the receipt portion on the bottom of the second page and signed as having received it merely to complete the contract. At the time, she contends, she did not know if the deposit was received from Peaden or not. She has never signed a contract like this before without a deposit and cannot give any other reason why she did it on this occasion. She is certain, however, that at no time did Mr. Peaden ever give her a $5,000.00 check or tell her to draw one for his signature on March 8, 1983, or, for that matter, at any time thereafter. What is more, neither Mr. Peaden nor the Respondent, at any time after the signing of the contract and prior to her departure under less than friendly circumstances approximately a week or so later, ever asked her whether she had made the escrow deposit or discussed it with her at all. Ms. white contends that she left Mr. Peaden's employ because he expected her to perform certain functions she was unwilling to do. When she left his employ, she did not feel there was any unfinished business that needed her immediate attention. To the best of her recollection, there were no sales contracts or deposits left in or on her desk - only bills. According to Respondent, the $5,000.00 deposit by Mr. Peaden was to stay in her escrow account. She understood Mr. Peaden was going to arrange with the bank to borrow the entire cash payment called for under the contract, including the deposit, and when that was done, it was her intention to give him back his $5,000.00 check. Under these circumstances, the amount in escrow would never be paid to the sellers but would be returned to Mr. Peaden and the Tews would receive the entire cash amount called for by the contract from the proceeds of the bank loan. Respondent also indicated that this procedure had been followed at least once, in a prior transaction. Under the circumstances, it is clear that no deposit was ever received from Mr. Peaden nor was it placed in Respondent's escrow account. Therefore, the contract, dated on March 8, 1983, was false in that it represented a $5,000.00 deposit had been received. The check for $5,000.00 dated March 8, 1983, payable to Linda Abraham, Inc. and drawn by Mr. Peaden on the Peaden and Guerino account with the stub admitted to show the date of issuance, does not establish that it was written on March 8, 1983, as contended. This check, number 1349, comes after two other checks, 1347 and 1348, which bear dates of April 4 and September 7, 1983 respectively. Mr. Peaden's explanation that the checks were drafted out of sequence is non-persuasive. Of greater probative value is the fact that neither Mr. Peaden nor Respondent bothered to review their bank statements on a regular basis. The check in question was drawn on an account not related to the construction and development business of Greg Peaden, Inc. Further, examination of Respondent's escrow account reflects that there were approximately eleven transactions over a three year period even though, according to her, she handled numerous other closings as well as this. Her explanation is that in most cases the attorney handling the closing served as escrow agent even though she was the sales broker. Her explanation is not credible. This appears to be a classic situation of movement of accounts to satisfy a particular end. The contract called for closing of the sale to be held on or before May 8, 1983, in the office of Panama Title Company. May 8, 1983, fell on a Sunday. As a result, the closing would not have been held that day, but it was not held the following day, Monday, May 9, 1983 either. Mr. Peaden admits that he had not checked with Panama Title prior to May 9 to see if everything was prepared for the closing. Instead, he contacted the title company for the first time at approximately noon on May 9. Apparently he received disquieting information because he thereafter called his attorney, Mr. Hutto, and asked him to check with the title company to see if and when the closing would be held. Mr. Hutto's inquiry reflected that the title insurance binder was ready but the closing statement and the package were not because the title company required a copy of the contract. At this point Mr. Peaden immediately had a copy of the contract delivered to the title company but later that day was advised that the closing still could not be held because of the failure to provide a survey. Mr. Hutto indicates that the reason given was that the release clauses called for in the contract required the survey to be furnished though he did not necessarily agree with that. In any event, closing was not held on May 9. At this time both Mr. Peaden and Respondent allegedly became concerned about the $5,000.00 deposit. Admittedly, neither had concerned themselves with it from the time of the signing of the contract. At this point, Mr. Peaden indicates that he examined his bank records which failed to show the deposit being made and his subsequent search of Ms. White's desk finally revealed the check, undeposited, still there. On May 11, 1983, a $5,000.00 deposit was made to the account on which the deposit check was drawn and on the same day, May 11, 1983 check number 1349, in the amount of $5,000.00 was presented against the account. When on May 10, 1983, Mr. Peaden and Respondent went to Mr. Hutto's office the primary reason for the visit was because Mr. Peaden had heard that the Tews were planning to sell the property in question to someone else at a price much higher than that agreed upon for the sale to Peaden. At this point Mr. Hutto indicated that if Peaden so desired, Hutto could "fix up the contract to jam up the works" until he could do something about it. His examination of the contract revealed that it was not recorded or acknowledged and under the laws of Florida, acknowledgment is required in order for a contract to be recorded. Hutto asked the Respondent if she had seen the parties sign the contract and when she said that she had, he had his secretary prepare a jurat. Unfortunately, his secretary prepared an affidavit type notary jurat rather than an acknowledgment and Hutto quickly admits that he did not look at it when it was given back to him. He says that if he had, he would have had it changed but in any event, without looking at what was given him, he gave it to the Respondent with the implication, at least, that she should notarize it and have the contract recorded. According to Hutto, Peaden, and the Respondent, the sole purpose for notarization and recordation was to preserve the status quo to protect Mr. Peaden's interest in the property so that the matter could be adjudicated in a lawsuit which was soon to be filed. Respondent contends she never intended any misconduct throughout this transaction nor did she do any of the things alleged in the Administrative Complaint. She contends she never saw the check which Mr. Peaden allegedly gave to his secretary for deposit to her escrow account. She merely assumed that it was given and never checked to insure that it had been placed in her account. She does not know why Mr. Peaden did not give her the check. When she took the contract to the Tews, she was operating under the assumption that the check had been received but did not verify this to insure that it had. She contends that since she represented the buyer, her duties were limited to insuring that he performed and this made it simple. She did not check on him because she had had so much experience with him, him being by far her largest account, if he said something, she believed him and when the contract was executed, she merely instructed the secretary, Judy White, to make the file and did not check on it again. As to the recordation and the notarization after the fact, she acted upon the advice of counsel, she states, and did what was suggested to her by Mr. Hutto. It should be noted, however, that Mr. Hutto did not represent her but instead represented Mr. Peaden and while because of her long-standing relationship with him and Mr. Hutto, she may have felt safe in relying on his advice, the fact remains that Hutto was not her attorney.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a registered real estate broker in Florida be suspended for six months and that she pay an administrative fine of $2,000.00. RECOMMENDED this 6th day of June, 1985, in Tallahassee, Florida. 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 6th day of June, 1985. COPIES FURNISHED: Arthur Shell, Esquire Department of Professional Regulation Division of Real Estate 400 W. Robinson Street Orlando, Florida 32801 John D. O'Brien, Esquire P. O. Box 1218 Panama City, Florida 32402 Harold Huff Executive Director Division of Real Estate P. O. Box 1900 Orlando, Florida Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent is duly registered as a real estate salesman and as a broker by Florida Real Estate Commission. On his application for registration as a salesman, in answer to question 9 on the application as to whether he had ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation, he answered "yes" and completed the "If yes, state details in full" part of the question with "traffic citation (speeding) 1970." On his application for registration as a broker some 16 months later he answered Question 9 "no". Exhibit 2, a certified copy of the court of record of Broward County, shows that on April 28, 1970, Respondent pleaded nolo contendere to the offense of attempted bookmaking and was fined $50. When questioned by the investigator for the Florida Real Estate Commission prior to the filing of this information, Respondent admitted that he had been arrested in California in 1960 and 1961 on charges of suspicion of assault and a traffic offense involving driving while under the influence of intoxicants. Testifying in his own behalf Respondent acknowledged that he had inadvertently failed to include those arrests on his application, and that in so doing he had no intention to conceal those arrests. The arrests for suspicion of assault involved a marital dispute with his former wife and those charges were dismissed. On the DWI charge he was fined $150. The breathalizer test he had taken was borderline and he was advised by the Public Defender that if he pleaded guilty he would be fined $150 as a first offender and if he employed the services of a lawyer to contest the charge the attorney's fee would be at least $250. He pleaded guilty to the charge. The attempted bookmaking arrest occurred while he was working in a bar in Deerfield Beach. The police suspected this bar was involved in bookmaking. Fetters had worked there only a week or two when two undercover agents, who had patronized the bar on a daily basis for several days, asked him to place a bet for them. He told them he had no information on how to place a bet, but after they insisted he took their money and made a call to someone he knew in Miami. The undercover agents then identified themselves and arrested him. Respondent holds a Cosmetology license in California, and an insurance salesman's license. He is currently working for Nichols' Realty in Boca Raton. His broker, Roy Nichols, has known Respondent for about three years and Respondent's reputation in the community is excellent. He has found Respondent's conduct exemplary both as a real estate salesman and as a family man.
Findings Of Fact On or about August 23, 1982, the Petitioner submitted his Application for Licensure as a Real Estate Salesman to the Florida Real Estate Commission. Question 6 of the application and Mr. Grant's response reads as follows: 6. Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled? Yes If yes, state details including the outcome in full: D.U.I., but all requirements have been satisfied and suspension period long over. On September 30, 1982, the Respondent, by letter, notified the Petitioner of two D.U.I. charges and two Disorderly-Conduct-Intoxication charges that had come to the Respondent's attention. The letter further asked for an explanation of these charges as well as an explanation of the Petitioner's "partial answer" to Question No. 6 on the application. (See Petitioner's Exhibit 1). The Petitioner responded in writing with a further explanation of the charges but did not specifically address the question raised regarding the "partial answer" to Question 6. The response also stated that the Petitioner had asked his attorney, James Dirmann, to be of any further additional assistance. (See Petitioner's Exhibit 1). On October 22, 1982, the Florida Real Estate Commission notified Mr. Grant, by letter, of its denial of his application for licensure. That letter specifically noted two grounds for denial of the application and stated in relevant part: The reason for the Commission's action is based on your answer to Question 6 of the licensing application and/or your criminal record according to the appropriate law enforcement agency. Specifically, your denial is based upon: 1978 Driving under the influence arrest/conviction August 1979 disorderly intoxication conviction Disorderly intoxication & resisting arrest without violence arrest/conviction 1981 Driving under the influence conviction On July 11, 1978, Petitioner was convicted in Sarasota, Florida, of driving while under the influence of alcohol and was fined $222. (See Respondent's Exhibit 5). In August, 1979, Petitioner was arrested for disorderly intoxication in Sarasota, Florida, and estreated his bond of $64.50 on August 27, 1979. The order (Respondent's Exhibit 2) does not reflect whether the petitioner was, in fact, convicted of an offense. (See Respondent's Exhibit 2). On April 14, 1981, petitioner was convicted of disorderly intoxication in Sarasota, Florida, and was fined $85.00 (See Respondent's Exhibit 3.) On September 22, 1981, Petitioner was convicted in Sarasota, Florida, of driving while under the influence of alcohol and was fined $350.00. (See Respondent's Exhibit 4). The two disorderly intoxication convictions on August 27, 1979, and April 14, 1981, arose out of incidents that occurred when the Petitioner was attempting to check into First Step of Sarasota, an alcohol rehabilitation center located in Sarasota, Florida. The four incidents referred to in Paragraphs 6 through 9 above are the only convictions or arrests the Petitioner has had. When the Respondent answered Question No. 6 on his application, he had no documents or records of the four offenses described in Paragraphs 6 through 9 above and was not certain whether even the driving under the influence charges would be considered offenses. He did not recall the disorderly intoxication arrests, but did not deny that they had occurred in his October 8, 1982, response to the Commission's September 30, 1982, inquiry. (See Petitioner's Exhibit 1). The Petitioner did not intentionally attempt to conceal information or mislead the Commission in his response to Question 6. The incomplete answer was an oversight and due in part to confusion on the part of Petitioner. During the time period 1978 through 1981, the Petitioner did, in fact, have a drinking problem. This problem developed as a result of a series of events beginning with a very hard fought and lengthy divorce proceeding initiated by Mr. Grant's ex-wife in June, 1975. Prior to 1975, Mr. Grant's mother had had a stroke and was totally disabled. In August, 1977, Mr. Grant's father died and it was necessary to close the family business which had been operated by Mr. Grant and his father and mother for many years. After his father's death, Mr. Grant became totally responsible for his invalid mother. During this same time period, following his divorce, his ex-wife had remarried and he continually experienced problems with visitation with his two children. The Petitioner began drinking heavily in 1978. In March, 1982, Mr. Grant voluntarily checked into Bay Pines Center, an alcohol rehabilitation center. He remained in Bay Pines for thirty (30) days. Since leaving Bay Pines, Mr. Grant has not been drunk or intoxicated and has consumed only a glass of wine on a couple of special occasions. Prior to going to Bay Pines Center, Mr. Grant had sought the help of a psychologist but could not afford to continue the sessions. From August, 1966, to August, 1974, Mr. Grant worked as manager and as an officer of the Sarasota County Credit Bureau. From August, 1974, to sometime in the Fall of 1977, Mr. Grant operated his own employment agency. He was licensed by the State in order to operate this employment agency. Prior to his employment with the Credit Bureau, Mr. Grant served as a First Lieutenant in the Army. Mr. Grant has a reputation in the community as an honest, hardworking businessman. He also has a reputation in the community as a very trustworthy person. In the operation of the Sarasota Credit Bureau for eight years, he was a very responsible, hardworking, and honest individual. There was no evidence of any dishonest dealing in connection with the Petitioner's previous businesses. Mr. Grant has improved greatly over the last year since leaving Bay Pines. He is more motivated and more active and now spends a great deal of time with his children. He has a much better relationship with his ex-wife and cooperates with her in caring for and giving guidance to their two children. From July 6, 1982, to August 10, 1982, Mr. Grant attended the Bert Rogers School of Real Estate. The course consisted of two night sessions each week from 6:00 to 10:00 p.m. He did not miss a single class and was not late for a single class. He successfully passed the exam for that course.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Petitioner's application for licensure be granted conditioned only upon passing the Real Estate Examination and payment of the necessary fees. DONE and ENTERED this 25th day of May, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1983. COPIES FURNISHED: Daniel E. Scott, Esquire Dirmann and Scott 2710 Main Street Sarasota, Florida 33577 Lawrence Gendzier Assistant Attorney General Department of Legal Affairs Room 212, 400 West Robinson Street Orlando, Florida 32801 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact At all times pertinent to the charges, Respondent was a licensed real estate salesman and broker-salesman, license number 0326235. In 1983, Dorothy Nutt and Diane Falstad were the owners of a house located at 608 Hillcrest Street, Orlando, Florida. In December of 1983, Ms. Nutt and Ms. Falstad placed this house for sale with real estate broker Frank Daley. The listing was an exclusive listing except as to the Respondent and another individual, for which no commission would be paid, if a contract submitted by the Respondent was accepted by Nutt and Falstad prior to December 26, 1983. On December 25, 1983, the Respondent, along with his parents, Barbara Okoniewski and Louis Okoniewski, Jr., submitted a written contract to Diane Falstad and Dorothy Nutt for the purchase of the 608 Hillcrest Street property. The contract was accepted by the sellers on December 26, 1983. The contract, as executed by the Respondent and his parents, specified that a $1,000 deposit was to be held in escrow by "Closing Agents." Additionally, Respondent represented to Ms. Falstad that the $1,000 deposit was being maintained in an escrow account. Pursuant to the terms of the contract, Respondent applied for a V.A. mortgage loan, but was later determined to be ineligible. Subsequent thereto, on or about February 8, 1984, application was made with Residential Financial Corporation (RFC), to obtain financing to purchase the 608 Hillcrest Street property. The application was in the name of the Respondent's parents, with Respondent handling the matter on their behalf. Thereafter, the Respondent requested that the loan officer (Charlyne Becker) at RFC not submit the loan application for approval to the underwriters. Pursuant to his request, the application was not submitted for approval. The transaction did not close. Subsequent to the scheduled date of closing both Ms. Falstad and Ms. Nutt made demands of the Respondent for forfeiture of the $1,000 deposit, due to their belief that, he had breached the contract by failing to secure financing. It was not until after the scheduled closing date that the sellers learned the $1,000 was not in escro. To date, Respondent has neither deposited the $1,000 in any trust account nor paid any money to the sellers. Respondent admits through his own testimony, that he did not make the deposit, nor was the deposit placed in any escrow account by his parents. Respondent's testimony, which was not rebutted, established that he and his parents sought to purchase the 608 Hillcrest Street property and that adjacent to it for rental purposes. However, they were advised by the RFC loan officer (Charlyne Becker) that the applications were not likely to be approved by RFC. Respondent did not thereafter pursue any of the loan applications.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order fining Respondent $500. DONE and ENTERED this 12th day of July, 1985 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 12th day of July, 1985. COPIES FURNISHED: James R. Mitchell, Esq. Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Louis S. Okoniewski 730 Lake View Avenue, N.E. Atlanta, Georgia 30308 Harold Huff. Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================ =
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact The parties stipulated that respondent Richard B. Watson holds a license issued by petitioner and has since 1976. He holds license No. 0163723, and has, at all pertinent times, worked as a broker-salesman for Liz Caldwell Realty, Inc., 126- 128 Eglin Parkway Southeast in Fort Walton Beach, Florida. Petitioner's Exhibit No. 1. On June 13, 1983, Lloyd H. Waldorff executed an employment contract under which Liz Caldwell Realty, Inc. was to have the exclusive right to sell the 25 units Waldorff Properties of Ft. Walton proposed to build as "phase two" of its La Mar West Townhouse Project in Mary Ester, Florida. Petitioner's Exhibit No. 6. Nobody signed the written agreement on behalf of the broker, but Mr. Waldorff's testimony that Ms. Caldwell or somebody in the agency "accepted" it was uncontradicted, and fully consonant with the other evidence adduced. Mr. Waldorff or his organization needed agreements from prospective buyers to purchase units when built, in order to induce a lender to lend money for construction of phase two. One Saturday, probably in mid-July of 1983, Ms. Caldwell presented him with 18 such agreements. It seemed peculiar to Mr. Waldorff, getting 18 purchase agreements at once; and he was also struck by the number of Californians and other non- Floridians among the putative purchasers. But he had nevertheless signed the agreements himself before Ms. Caldwell gave them to Mr. Watson for attestation; and he later furnished all of the purchase agreements to Security Federal Savings and Loan Association of Panama City in support of an eventually successful application for a $1,100,000.00 construction loan. (T.90) Mr. Waldorff signed the purchase agreements in a back room within the Liz Caldwell Realty, Inc. offices. At hearing he remembered that a woman was present. He did not recall respondent's being there. Seventeen of the 18 agreements furnished the lender were purportedly signed by persons to whose signatures, except in one instance, respondent Watson attested. Petitioner's Exhibit No. 4. On 16 of the 17 purchase agreements on which he signed as a witness to putative purchasers' signatures, respondent also signed as a witness to Mr. Waldorff's signature in a blank provided under the heading "signed in the presence of:". Petitioner's Exhibit No. 4. Respondent was aware at the time that Mr. Waldorff, whom he considers a friend, needed such agreements in order to obtain financing. As time for closing on the purchase agreements approached, Mr. Waldorff testified, he became suspicious, and asked Ms. Caldwell to see her escrow account statements, but she put him off. Eventually he asked her if the purchase agreements were "bogus," and she answered by nodding affirmatively. It was at this point, Mr. Waldorff said, that he notified the lending institution of their falsity, and asked for an extension of time in which to repay the construction loan. But the weight of the evidence established that the purchase agreements were shams from their inception and that Mr. Waldorff knew it before he obtained the loans. On September 9, 1985, Paul R. Bratton, III, an investigator for DPR, asked Mr. Watson about the purchase, agreements on which he had witnessed purported parties' signatures. In this interview, Mr. Watson said, with respect to some of the contracts which he had signed as a witness, "that he did not see the buyers or the sellers sign the contract." (T.63) In a deposition he gave in the course of related civil litigation, respondent Watson testified that it was "(p)retty much," Petitioner's Exhibit No. 5, p.10, "standard procedure" for him to witness signatures which he had not seen being affixed. In response to the question, "Does that mean also you wouldn't know whether these people exist in real life or not?", Mr. Watson answered, "It could be. ..." Id. as 15. Mr. Waldorff told Mr. Watson he was going to use the 18 purchase agreements, all but one of which respondent had signed as a witness, to secure a construction loan even though they were "bogus." Petitioner's Exhibit No. 5. This conversation antedated the loan closing. Id.
Findings Of Fact By application filed with respondent, Division of Real Estate (Division), on July 5, 1988, petitioner, Garth Arin Malloy, sought licensure as a real estate salesman. In response to question six an the application, petitioner acknowledged that he had been arrested in August 1984 for possession of marijuana, a felony, and burglary and sexual misconduct, both misdemeanors, and ultimately pled guilty to the felony charge of possession of marijuana and the misdemeanor charge of sexual misconduct. After reviewing the application, and securing petitioner's record of arrests, respondent issued proposed agency action in the form of a letter on October 3, 1988, denying the request on the ground petitioner was not "honest, truthful, trustworthy, and of good character" and did not "have a good reputation for fair dealing." The denial prompted petitioner to request a formal hearing. Malloy, who is twenty-eight years old, graduated from Spring Hill College in Mobile, Alabama in February 1983 with a degree in psychology. After graduation, he worked as a recreation director for a residential care facility for emotionally disturbed children in the Mobile area. In August 1984 he was arrested for possession of marijuana after police found marijuana plants growing in his backyard. The charge was a felony under Alabama law. A short time later, one of Malloy's neighbors lodged charges of sexual abuse against him for allegedly making improper advances on her thirteen year old son. A charge of second degree burglary, a felony, was added for Malloy allegedly unlawfully entering the house where the minor resided Upon advice of his attorney, Malloy accepted a negotiated plea offered by the state and pled guilty to the felony charge of possession of marijuana and to a reduced misdemeanor charge of sexual misconduct, and the state agreed to dismiss the burglary charge. After the plea was accepted, Malloy was placed on probation for five years. Except for these offenses, petitioner has never been charged with or convicted of any other crimes. Malloy accepted the above arrangement since he did not wish to go to trial and risk incarceration. He readily acknowledged the presence of marijuana plants in his back yard which he said were for his own consumption and that of some friends. However, he vigorously denied the sexual misconduct and related burglary charges and blamed them on the neighbor who he contended was mentally unstable and vindictive. Since Malloy's plea, he has been on supervised probation which is scheduled to end on January 1, 1990. Under the terms of his probation, Malloy must check in once a month, report his activities to a supervisor and attend counseling sessions. He is currently in the process of requesting an early termination of probation. Malloy left Alabama in early 1985 and worked briefly at a resort in Key West. In late 1985 he began employment with a satellite communications firm in St. Petersburg and was in charge of sales, credit and installations for three area stores. In that capacity, he handled the firm's money and was required to frequently deal with the public. After a brief stint as an assistant store manager with a Sarasota department store, Malloy worked two years as a teller for a Sarasota savings and loan institution where he handled large amounts of cash on a daily basis. It is noteworthy that the bank hired petitioner with the knowledge of his criminal background. Pending the outcome of this proceeding, Malloy is working as an office manager with a Sarasota air-conditioning firm. Malloy now wishes to enter the real estate profession and eventually specialize in appraising. Malloy's honesty, trustworthiness and good reputation were attested to by the branch manager of the bank where Malloy was employed and the owner of the business where he now works. Malloy was described as being honest, reliable and trustworthy. Both had the utmost confidence in entrusting Malloy with handling moneys. Indeed, all positions held by Malloy since 1985 have involved unsupervised responsibilities, the handling of cash and dealings with the public. As such, he has established rehabilitation. There was no evidence to contradict these findings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Garth Arin Malloy for licensure as a real estate salesman be GRANTED. DONE and ORDERED this 23rd day of March, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5666 Petitioner: 1. Covered in finding of fact 1. 2-3. Covered in finding of fact 4. 4-6. Covered in finding of fact 2. 7. Rejected as unnecessary. 8-9. Covered in finding of fact 4. 10-11. Covered in finding of fact 3 12-13. Covered in finding of fact 4. 14. Covered in finding of fact 3. 15. Covered in finding of fact 6. 16-32. Covered in finding of fact 7. 33. Rejected as unnecessary. 34. Covered in finding of fact 5. 35. Covered in finding of fact 4. 36. Rejected as being a conclusion of law. 37-38. Covered in finding of fact 7. 39. Rejected as unnecessary. COPIES FURNISHED: Edwin M. Boyer, Esquire 2055 Wood Street, Suite 220 Sarasota, Florida 34237 Manuel E. Oliver, Esquire Room 212, 400 West Robinson Street Orlando, Florida 32801 Darlene F. Keller Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
