The Issue The issue presented is whether Charles Simon violated subsections 475.25(1)(b) and (f), Florida Statutes (1985) by pleading guilty to crimes involving moral turpitude or fraudulent and dishonest dealing, i.e. grand theft and trafficking in stolen property by reissuing and refunding airline tickets without making payment for them.
Findings Of Fact Charles Simon was at the times material to this proceeding licensed as a real estate broker in the State of Florida holding license number 0123689. The last license was issued to him as a broker at 90 Beacon Boulevard, Miami, Florida 33135. On about October 15, 1986, Mr. Simon pled guilty to six counts of an indictment alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO Act), grand theft and trafficking in stolen property for issuing and refunding of airline tickets without making payment for them. Adjudication of guilt was withheld and Mr. Simon was placed on community control for a period of twenty-four months to be followed by a period of probation of eight years, and he was ordered to pay $50,000 in restitution and court costs. By letter dated October 9, 1986, Respondent informed the Commission of having pleaded guilty to a felony. By letter dated January 6, 1987, Mr. Simon wrote again to the Commission, stated that he had received no reply to his letter of October 9, 1986 and enclosed a carbon copy of the October 9, 1986 letter. The Commission never received his first (October 9, 1986) letter, although it did receive a copy of it when attached to the January 6, 1987 letter. The Department relies solely upon the records of the conviction to make its case. It did not dispute Mr. Simon's explanation of the events underlying his guilty plea. Mr. Simon's version of the events is accepted, in part because his testimony was not contested by the Department, and in part because the explanation is plausible. In May of 1983, Mr. Simon's wife owned a travel agency in Dade County. His real estate office was located in the same suite of offices. While clerical employees of the travel agency would sometimes perform work for the real estate office they were wholly separate businesses. Mr. Simon was not an officer or employee of the travel agency and received no money from it. In May, 1983 Mr. Simon's wife put the agency up for sale. Travel agencies are approved by the Air Traffic Corporation (ATC) to write airline tickets on generic ticket stock if they meet certain requirements. ATC affiliation is important to a travel agency because it makes accounting to airlines for tickets sold much simpler. ATC serves as a clearinghouse; at the end of the week a travel agency sends one check to ATC for all tickets written during the week. ATC separates the billings according to airline, and writes one check to each airline for all tickets sold by the agents belonging to ATC. Blank ticket stock is valuable and purchasers must qualify through ATC to buy a travel agency that is an ATC member. Otherwise an untrustworthy new owner could write tickets out, collect money and never pay the ATC who in turn would not be able to pay the airlines. Mrs. Simon was familiar with people who expressed an interest in purchasing her agency, but they asked her not to tell ATC of the sale. When notified of the impending sale ATC would investigate the qualifications of the proposed new owners, and their previous employer or present employer would be contacted by ATC. The potential buyers were currently working at another travel agency. They wanted to buy Mrs. Simon's agency and move their clients to their new agency (Mrs. Simon's agency). They did not want to tip off their present employer of their intentions by having ATC contact the present employer. Mrs. Simon agreed to withhold notification to ATC to facilitate the sale of the travel agency. After the ownership of the travel agency was transferred and most of the purchase price had been paid, Mrs. Simon was informed that the new owners had ticket stock from other travel agencies at the agency she had sold. Although this is not a violation of any statute, it violates ATC rules and alerted Mrs. Simon that something was wrong. She realized that the reason the purchasers did not want to notify the ATC of the transfer was that they were engaging in a "bust out" of the agency, i.e., issuing valid airline tickets without receiving payment for them. The tickets would then be returned to the airlines for cash refunds (although they had never been paid for) or resold to others at less than their face value. Ultimately, ATC revoked the agency's authority to issue tickets, but by then the owners had defrauded the airlines of many thousands of dollars. Mrs. Simon panicked and Mr. Simon agreed to try to handle the situation. Instead of reporting the matter to the police Mr. Simon tried to cover it up so that Mrs. Simon would not be implicated in wrongdoing. Precisely what Mr. Simon did in his attempt to keep his wife from being implicated in the purchasers' scheme was not explained at the hearing. Those individuals involved in the "bust out" were ultimately arrested and convicted. Mr. Simon was also charged because of his involvement with the sale after Mrs. Simon discovered the purchasers' scheme. Under the sentencing guidelines the charges made against him would have called for a sentence of six years in jail. The state attorney's office agreed to two years of community control, eight years probation and $50,000 restitution to the airlines, if Mr. Simon would plead guilty to the charges rather than require a trial; the state attorney also agreed that no charges would be filed against Mr. Simon's wife in return for his guilty plea. The state attorney's office further agreed to a withholding of adjudication of guilt so that Mr. Simon's real estate license would not be affected. Based on 1) the cost of going through a trial to defend himself and potentially another legal proceeding for the defense of his wife (which would exceed $50,000) and, 2) his erroneous belief that a guilty plea with a withholding of adjudication would not affect his real estate license, Mr. Simon agreed to the state attorney's offer as being in his best interest even though he believed that he had done nothing illegal. Since that time Mr. Simon's community control has been terminated and he has been placed on regular probation, which merely requires a once a month report to a probation officer which can be done by mail. It has also been agreed that Mr. Simon may return to England to live. The lightness of the sentence and the reduction of the period of community control corroborates Mr. Simon's argument that the state attorney's office knew that he had not been involved in the fraudulent plan to "bust out" his wife's travel agency, although he was not entirely forthcoming when the purchaser's plan was discovered.
Recommendation It is RECOMMENDED that a final order be entered finding Mr. Simon guilty of violation of subsection 475.25(1)(b), Florida Statutes as charged in Count I of the administrative complaint and guilty of violation of subsection 475.25(1)(f), Florida Statutes as charged in Count II of the administrative complaint and that the real estate broker's license held by Mr. Simon be revoked. DONE and ORDERED this 21st day of September, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 21st day of September, 1987. APPENDIX The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985). Rulings on Proposals of the Petitioner's: Rejected as unnecessary. Covered in Finding of Fact 1. Covered in Finding of Fact 1. Covered in Finding of Fact 2. Covered in Finding of Fact 2. Covered in Finding of Fact 3. COPIES FURNISHED: Charles Simon 90 Beacon Boulevard Miami, Florida 33135 Mr. Charles Simon 10435 S.W. 76th Street Miami, Florida 33173 James H. Gillis, Esquire Department of Professional Regulation Florida Real Estate Commission P. O. Box 1900 Orlando, Florida 32802 Harold Huff, Executive Director Department of Professional Regulation Florida Real Estate Commission P. O. Box 1900 Orlando, Florida 32802 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Charles Astore, Jr. is guilty of violation of Section 475.25(1)(a) and (2), Florida Statutes.
Findings Of Fact Charles Astore is a registered real estate salesman. Charles Astore was employed by International Land Services Chartered, Inc. He was paid by International Land Sales Chartered Inc.
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 Charles Astore Jr. as a registered real estate salesman. DONE and ORDERED this 7th day of April, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISED: Manuel E. Oliver, Esquire Charles Felix, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Charles J. Astore, Jr. 501 N.W. 93rd Terrace Pembroke Pines, Florida 33023 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION Plaintiff, CASE NO. 2952 DOAH CASE NO. 77-201 CHARLES J. ASTORE, JR., Defendant. /
The Issue Whether Respondent's license as a real estate broker should be suspended or revoked, or the licensee otherwise disciplined, for alleged violation of Chapter 475, Florida Statutes, as set forth in Administrative Complaint, dated December 4, 1981. This proceeding involves allegations by the Florida Board of Real Estate (now Florida Real Estate Commission) that Respondent, James R. Siebert, violated Subsection 475.25(1)(h) Florida Statutes, by sharing a commission with a person not properly licensed under the real estate law, and that he employed a person as a salesman who is not the holder of a valid license, in violation of Subsection 475.42(1)(c) , Florida Statutes, and therefore in violation of Subsection 475.25(1)(a), Florida Statutes. The incident which prompted the Administrative Complaint involved an auction sale of a restaurant in Brooksville, Florida which was conducted by an auctioneer who did not have a license to practice real estate in Florida. Respondent requested an administrative hearing and filed an answer to the Administrative Complaint admitting the occurrence of the auction, but denying that it involved the sale of real estate.
Findings Of Fact Respondent, James L. Siebert, is a licensed real estate broker at Orange Lake, Florida, and was so licensed at all times relevant in this proceeding. (Stipulation) On several occasions prior to February 21, 1981, Respondent had gratuitously assisted Albert W. (Billy) Mitchell, an auctioneer, in conducting auctions by serving as a "ring man" and clerk. A "ring man" normally is one of several such individuals at an auction who assists the auctioneer by encouraging bidding and identifying bidders. Mitchell is not licensed under real estate laws of Florida, but operates under a local occupation license. None of the prior auctions in which Respondent assisted Mitchell involved the sale of real estate. (Testimony of Respondent, Mitchell) On January 28, 1981, Mitchell entered into an "auction sale contract" with Welberta Pruitt whereby Mitchell agreed to sell at auction to the highest and best bidder: . . . the following described business and personal property owned by the Party of the First Part: Pruitts Golden Wagon Steak House Restaurant and Contents on attached inventory list and located 1702 Howell Avenue, Brooksville, in Hernando County, State of Florida. The terms of this sale shall be 10 percent of the amount of the purchase price to be paid on day of sale and the balance to be paid as follows: On delivery of title - There is a mortgage on the business of $67,838.20 with interest at 8 3/4 percent on the unpaid balance. The attachment to the contract listed various items of food supplies and restaurant furniture and equipment, plus decorative items of personal property. Pruitt and her husband had purchased the real property on which the restaurant building was located under an agreement for deed in 1979 which provided that the Pruitts would make the payments on a mortgage of about $67,000 from the sellers to the First Federal Savings and Loan Association of Citrus County and, when such mortgage was paid in full, the sellers would convey title to the property by warranty deed. The contract reflected that the total purchase price of the property was $75,000, and that a down payment had been made in the sum of $7,000. Mrs. Pruitt owned furniture, fixtures and equipment which she transported from Tennessee to operate a restaurant on the premises. (Testimony of W. Pruit Kelly, Mitchell, Johnston, Respondent's Exhibits 1,2) It was the understanding of the parties to the auction agreement that only the personal property in and around the restaurant building would be sold to the highest bidder, and it was anticipated that the successful bidder would take up the mortgage payments on the real property. The equity which the Pruitts had acquired by prior mortgage payments was to be "given" to whoever purchased the "business" at the auction. Accordingly, on February 20, 1981, the day preceding the auction, Mrs. Pruitt issued a "notice" that she would sell her "entire Restaurant, business, furnishings, equipment, and Inventory at Public Auction". The notice further stated that she would give her equity in the real estate to the purchaser on which there was an existing mortgage of $67,821.36 "that you may assume". The noticewas placed on the door of the restaurant. In addition, Mitchell issued a brochure advertising the auction wherein it was stated that the "entire business, furnishings, equipment, and stock" would he sold at absolute auction and that the purchaser would have the "privilege of assuming the payments on the existing mortgage." Mitchell had Respondent's name placed at the bottom of the brochure without Respondent's knowledge because he thought it would be a good advertisement for him. (Testimony of Mitchell, W. Pruitt, Petitioner's Exhibit 3, Respondent's Exhibit 3) Mitchell asked Respondent to assist at the Pruitt auction and told him that since Mrs. Pruitt and her attorney were having a disagreement, it might be necessary for Respondent to write the contract resulting from the auction. No fee for Respondent's services was discussed prior to the auction. (Testimony of Mitchell, Respondent) On February 21, 1981, the auction was conducted at the restaurant in Brooksville, and Respondent was present to act as a "ring man". There were only about 3 individuals who entered bids at the auction. Prior to receiving bids, Mitchell announced that he was auctioning the contents of the business and that whoever bought the property would take over the payments on the mortgage. The successful bidder was Robert Shrader, who bid $9,600. He made a 20 percent down payment at the time in the amount of $1,920 which Mitchell retained as a commission on the sale. Mitchell had not described the real estate at the auction, but merely stated that he was auctioning the business and that Mrs. Pruitt would give the successful bidder her equity in the property. After accepting Schrader's bid, Mitchell gave the figures on the sale to Respondent who prepared a standard contract for sale and purchase of the real estate in the total amount of $77,421.36. The contract reflected a deposit of $1,920 to be held in escrow by Billy Mitchell and Associates, that the contract was subject to assumption of a mortgage of $67,821.36, and that there would be a balance of $7,680. Shrader and Mrs. Pruitt signed the agreement on February 21, 1981, which was witnessed by Mitchell and Respondent. Although no brokerage fee was listed, Respondent signed as broker on the contract. He testified at the hearing that he had done this out of habit. A real estate contract was prepared rather than merely a bill of sale of the personal property in order that the parties would have the figures they needed to close which they could take to the closing attorneys. After the auction, Mitchell gave Respondent $200 as a gift for his gasoline and other expenses on the Pruitt and prior auctions. Respondent testified, and Mitchell confirmed, that the latter insisted that he accept that amount as reimbursement for expenses. (Testimony of Mitchell, Respondent, Petitioner's Exhibit 1) On April 6, 1981, Joseph P. Johnston, an attorney in Brooksville, closed the transaction by means of a bill of sale for the furnishings and equipment in Pruitts restaurant, and assignment of the Pruitt interest in the mortgaged real property. The closing statement reflected that a "broker's commission" in the amount of $1,920 was held by the "broker" to apply on commission, In actuality, the sum retained by Mitchell as a commission was based solely upon a percentage of the personal property sold at auction. (Testimony of Johnston, Mitchell, Petitioner's Exhibit 2)
Recommendation That the Florida Real Estate Commission dismiss the charges against Respondent, James R. Siebert. DONE and ENTERED this 3d day of June, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 3d day of June, 1982 COPIES FURNISHED: Salvatore Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harvey R. Klein, Esquire Klein & Klein 333 North West 3rd Avenue Ocala, Florida 32670 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. C. B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801
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
The Issue The issues for determination in this proceeding are whether Respondent violated Sections 475.426(1)(a) and 475.25(1)(a), (b), and (e), Florida Statutes, 1/ by: acting as a broker; failing to deposit money in escrow; committing fraud, deceit, or dishonesty; and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate and for regulating licensees on behalf of the state. Respondent is a licensed real estate sales person under license number 0585127. In September, 1992, Respondent's real estate license had lapsed. It was renewed on October 22, 1992. The last license issued to Respondent was issued as a sales person at 457 Loma Bonita Drive, Davenport, Florida. Respondent is a British citizen doing business in Florida. Respondent owns 50 percent of the outstanding stock of Newbay Florida Associates ("Newbay") and Newbay Properties of Central Florida, Inc ("Newbay Properties"). Mr. Paul Chandler is a British citizen confined to a wheelchair by osteogenesis imperfecta, a bone disease. Mr. Chandler was injured in an automobile accident by a drunken driver in 1989. As a result, Mr. Chandler was awarded a jury verdict of $600,000. From the net proceeds of the jury verdict, Mr. Chandler purchased four houses in Florida from Respondent. The houses were for Mr. Chandler and members of his family who have disabilities similar to Mr. Chandler's. 2/ Mr. Chandler paid the remainder of his jury award, approximately $225,000, to Respondent to purchase a furniture franchise. The franchise was to be operated as Flamingo Interiors, Inc. ("Flamingo"), in Kissimmee, Florida. In September, 1992, Respondent and Mr. Chandler negotiated and executed a Franchise Rights Agreement (the "agreement"). The agreement identifies Mr. Chandler as the "franchisee" but otherwise conceals material facts and contains misrepresentations, false promises, false pretenses, and amounts to dishonest dealing by trick, scheme, or device. The agreement illustrates Respondent's fraud and breach of trust in a business transaction. The agreement contains the name "NEWBAY FLORIDA ASSOCIATES" across the top of the front page of the document. However, the agreement identifies the "franchisor" as Flamingo Interiors of Wells, Somerset, England. The agreement requires Flamingo Interiors to perform numerous obligations. The obligations include: setting up a retail store; providing all necessary training, licensing, qualifications, visas, and inventory; conveying an exclusive area of operation within an "eight (8) miles radius from the Newbay office;" and establishing the location and size of the retail store at the discretion of Newbay. The agreement represents that Newbay owns 25 percent of the outstanding stock in Flamingo Interiors. However, the agreement conceals Flamingo Interiors' place of formation, organization, and current status, and conceals Newbay's authority, or lack of authority, to bind Flamingo Interiors to the obligations of the franchisor in the agreement. Respondent is the only signatory to the agreement other than Mr. Chandler. Respondent signed the agreement on behalf of Newbay. No one from Flamingo Interiors is a signatory to the agreement. The purchase price under the agreement requires Mr. Chandler to deposit $45,000 upon execution of the agreement. The balance of $180,000 is to be paid by December 31, 1992. Mr. Chandler paid the $225,000 required under the agreement in three checks made payable to "Newbay Clients Account." Respondent represented that the amounts paid by Mr. Chandler would be held in the escrow account of Newbay Properties until the obligations of the franchisor were completed in accordance with the terms of the agreement. All negotiations were conducted in the offices of Newbay Properties. Newbay Properties had no escrow account. Respondent failed to place the $225,000 paid to him by Mr. Chandler into any escrow account. The obligations of the franchisor were never satisfied, in whole or in part. Neither Respondent, Newbay, nor Flamingo Interiors made any attempt to obtain performance of the obligations of the franchisor. After repeated efforts and requests by Mr. Chandler, Respondent failed to account for or return Mr. Chandler's money. Respondent never explained his failure to return the money deposited with Respondent by Mr. Chandler.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Sections 475.25(1)(k), 475.25(1)(e), and 475.42(1)(a); guilty of violating Section 475.25(1)(b); and revoking Respondent's real estate sales license. RECOMMENDED this 8th day of February, 1995, in Tallahassee, Florida. DANIEL S. MANRY 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 8th day of February 1995.
The Issue Should discipline be imposed against Respondent's Florida real estate sales associate license?
Findings Of Fact Stipulated Facts: Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165 and Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is and was at all times material hereto a licensed Florida real estate sales associate, issued license number 3015177, in accordance with Chapter 475 of the Florida Statutes. The last license issued was as a sales associate with Diane Lynne Severino, P. O. Box 354491, Palm Coast, Florida 32135-4991. On or about August 6, 2004, Joaquin Torres and Marine Hopson (Torres) entered into a purchase and sale agreement for the real property located at 9 Rockwell Lane, Palm Coast, Florida. Respondent was the sales associate on the above transaction. The closing did not occur on the above transaction. Additional Facts: According to Petitioner's records, the following constitutes the history of Respondent's sales associate license: Francis Anthony Severino, Sr., Sales Associate, License #SL-3015177 From January 1, 2004 to October 4, 2004, he was a sales associate affiliated with Team Real Estate, Inc. doing business as Realty Executives Fun Coast Team license number CQ 1008966, a brokerage corporation located at 185 Cypress Point Parkway, suite 4, Palm Coast, Florida 32164; From October 4, 2004 to March 31, 2005 said licensee was invalid due to no employing broker or no filing of a request to remain a sales associate under another broker. From March 31, 2005 to the Present he is a sales associate affiliated with Diane Lynne Severino license number BK 666867, a brokerage sole proprietorship doing business as Severino Realty located at 170 North Beach Street, Daytona Beach, Florida 32114. Petitioner's Exhibit numbered 1. In his testimony Respondent indicated that his affiliation with Team Real Estate, Inc. ended on September 13, 2004, when he became inactive with that firm. Respondent's Exhibit numbered 2 is a copy of a DBPR RE-2050-1 Request for Change of Status form intended to establish the separation from that business. Mark Vost the real estate broker for Team Real Estate, Inc. filled out, signed, and sent it in. It has a fax stamp of September 13, 2004. The request by Mark Vost to inactivate Respondent as a sales associate with Team Real Estate, Inc., through the form DBPR RE-2050, was dated September 13, 2004, and officially received by the Department of Business and Professional Regulation on October 4, 2004. More significantly, Respondent testified that he filled out a DBPR RE-2050-1 a Request for Change of Status to be affiliated with Severino Realty whose broker was Diane L. Severino. At that time, Ms. Severino was Respondent's wife. A copy of the Request for Change of Status is found as Respondent's Exhibit numbered 3. It is dated September 13, 2004. Unlike Respondent's Exhibit numbered 2, Respondent's Exhibit numbered 3 does not have a fax stamp showing the date of transmission. Respondent indicated that he personally went to the fax machine in the office of Severino Realty and transferred his license to Petitioner by fax machine. On September 13, 2004, the date reflected on the form, Petitioner did not confirm the fax receipt by Petitioner. Respondent's explanation is that the fax machine upon which the transfer to Severino Realty of his sales associate license "did not have a receipt that prints out." Respondent in his testimony stated " . . . When I dialed the phone I got the dial tone, it rang, it answered, it made that beeping noise, and it never came and said anything that it did not go through and that it was an error. So I just assumed that it was accepted, because normally when a fax machine answers you, that beeping sound and it means that it is acknowledged and if it does not answer it’s a busy signal and you try dialing again." According to Respondent, from that point forward he assumed that his sales associate license had been transferred from Team Real Estate, Inc. to Severino Realty. It had not. Petitioner had evidence of the change of status of Respondent's license to inactive with Team Real Estate, Inc. It did not have evidence of the activation of Respondent's sales associates license with Severino Realty, even should one accept Respondent's testimony that he tried to fax the DBPR RE-2050-1 form designating a change in his broker to Diane L. Severino of Severino Realty on September 13, 2004. Ultimately the portrayal of Respondent's license history established in Petitioner's Exhibit numbered 1 is accepted where Respondent is recognized as being affiliated with Severino Realty commencing March 31, 2005. Respondent was involved with the Torres in a number of real estate transactions. One involved a purchase of a residence at 98 Ulysses Trail in Palm Coast, Florida, through a contract between Joaquine Torres and Holiday Builders, Inc. On July 21, 2004, the parties signed the contract. The total purchase price was $180,190.00. Respondent was named in the Sales/Forms FHA-VA- Std. in the portion of the forms described as "Realtor Referral" and Realty Executive is written next to his name. This is understood to refer to Team Real Estate, Inc. where Respondent was employed as a sales associate. The real estate commission involved with the purchase was 6 percent. Petitioner's Exhibit numbered 2. The real estate commission due Realty Executives (Team Real Estate, Inc.) was $8,129.00 in Respondent's name. Petitioner's Exhibit numbered 2. On September 24, 2004, when the purchase was settled at closing, the $8,1029.00 was paid, in relation to the property at 98 Ulysses Trail. Petitioner's Exhibit numbered 3. On September 24, 2004, the Torres as seller, with Severino Realty being reflected as the broker signed an Exclusive Right of Sale Listing Agreement for the 98 Ulysses Trail property. The price reflected was $229,800.00 with a broker's commission of 5.5 percent. The listing agreement bore one signature, that of the seller. The form did not name the authorized listing associate or broker. It referred to the brokerage firm name as Severino Realty. Petitioner's Exhibit numbered 4. Earlier, Mr. Torres entered into a "Showcase Home Purchase Completed Field Model Agreement" with Holiday Builders, Inc. for a residence at 9 Rockwell Lane, Palm Coast, Florida. On August 6, 2004, the parties signed the agreement. Petitioner's Exhibit numbered 5. On September 24, 2004, an Exclusive Rights of Sale Listing Agreement form was prepared between the Torres and Severino Realty on 9 Rockwell Lane, listing the sales price as $164,900.00. At the time, the Torres did not own the home. The brokerage commission was 5.5 percent. A seller's signature was attached. No other signature was provided. No one was listed as associate or broker. Petitioner's Exhibit numbered 6. The Torres' contract on 9 Rockwell Lane never closed due to the inability of the Torres to provide sufficient funds to conclude the purchase. On October 7, 2004, the Torres executed a Promissory Note to pay Respondent $5,000.00 upon the first sale of homes at 98 Ulysses Trail, 9 Rockwell Lane and 14 Ethel Lane. The amount was to be paid in 180 days from the date of the note payable at PO Box 354491, Palm Coast, Florida 32135 or "at such other place as payee or holder may specify in writing or in person." Petitioner's Exhibit numbered 7. On October 7, 2004, Mark Vost, broker/manager for Realty Executives Fun Coast Team Real Estate, Inc., wrote the title company that would be handling the closing on the 9 Rockwell Lane Property to advise that $5,000.00 of commission should be credited to the buyer with the balance of $879.00 being paid to Realty Executives the Fun Coast Team. Respondent's Exhibit numbered 8. This coincides with the settlement charges in the settlement statement for the 9 Rockwell Lane property that did not close on the anticipated date. October 12, 2004, was the scheduled closing date. Petitioner's Exhibit numbered 9. After the Torres purchase of 9 Rockwell Lane did not close, Respondent telephoned Ms. Torres and said that she would have to pay him $6,000 because of the percentage (commission) he was losing. He made more than one call. Respondent told Ms. Torres that the failure to close on the 9 Rockwell Lane property was not his problem. Respondent told Ms. Torres that she had to pay because she did not buy the property at 9 Rockwell Lane, that he lost his time and lost his commission and that it was her fault. Respondent told Ms. Torres to give him a check. Eventually, Respondent came to the Torres home to get money from the Torres that he said was due. Based upon the demand for money, Ms. Torres wrote a check payable to Frank Severino in the amount of $6,000.00. The face of the check stated the purpose for the check as "9 Rockwell Lane." The check was written on October 12, 2004, the date Respondent went to the Torres' home. The payment was not intended as any form of gift or gratuity to Respondent. Respondent deposited and cashed the check. A replica of the check and its execution is found as Petitioner's Exhibit numbered 10.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Sections 455.227(1)(n) and 475.25(1)(b), (d) and (e), Florida Statutes (2004), and revoking Respondent's sales associate license.1/ DONE AND ENTERED this 30th day of March, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2007
Findings Of Fact Prestige Realty, Inc. and Anthony C. Cappello were at all times here relevant registered with the FREC as alleged. Mrs. Cappello, wife of Respondent, is a salesperson with Prestige Realty, Inc. Prestige Realty, Inc. is an Electronics Realty Associates (ERA) franchisee and actively promotes the ERA Homeowners warranty Plan which will, for a fee, warrant to pay for repairs to structure and equipment within the first year of purchase all costs over the minimum for which the policy is written. While showing prospective purchasers William and Dora Keys various properties, Mrs. Cappello told them about the ERA Buyers Protection Plan (BPP) and the Keys expressed an interest in having same, particularly if the seller would pay for it. Mrs.. Cappello has worked with the Keys for several months showing them various properties for sale. Thomas Hanrahan listed his home for sale with B & M Real Estate as listing agent at a price of $52,000 on 31 January 1977. On April 28, 1977 Mrs. Cappello obtained an offer from William and Dora Keys to purchase Hanrahan's house for $49,000. Keys had inherited some money, and after seeing the Hanrahan house which they liked, made an offer to purchase the property for $49,000 including the drapes and BPP. Inclusion of the BPP in the offer was suggested by Respondent Cappello and/or Mrs. Cappello. The fact that an offer had been received was communicated to the listing salesperson and the listing agent met the Cappellos to present the offer to Hanrahan. Respondent Cappello, who had accompanied his wife to present the offer, first discussed the contract conditions, including drapes and BPP, before revealing the offering price to Hanrahan and the listing broker's agent. When Respondent revealed the $240 premium for BPP Hanrahan remarked it was a "rip- off"; however, Respondent Cappello emphasized that the seller shouldn't mind paying this premium if the selling price of the home is right. After obtaining Hanrahan's agreement to the BPP "if the price is right', Respondent disclosed the offering price of $49,000. Hanrahan refused this offer and made a counter offer of $51,000, which was communicated to the buyers who re-countered with a $50,000 offer. At no time during these negotiations did Respondents advise Hanrahan that Prestige Realty would receive 25 percent of the premium the contract provided the seller would pay for the ERA BPP. Of the $240 premium paid for the BPP, $C0 was retained by Respondent, Prestige Realty, and the remaining $180 was forwarded to ERA. When the offer of $50,000 was presented to Hanrahan by Respondent Cappello, it was represented to be the buyers' final offer, that the ERA BPP was an essential element of the offer, and if not accepted by the seller they would find the buyers another house. The Keys never insisted to Cappello that the BPP be included in their offer, and both William and Dora Keys testified they would have paid $50,000 for the Hanrahan home without the BPP. Attempts by Hanrahan to share the cost of BPP with the buyers or discourage their insistence upon having this policy provided were rebuffed by Respondents. Following the closing the Keys were offered the option of taking a lower deductible on the BPP than $100, but after being advised the additional cost to them for a lower deductible, it was declined. Respondents and other ERA franchisees consider the BPP to be a good selling tool in the conduct of their business. In addition to the BPP, ERA offers a sellers protection plan which, if the seller lists his house with an ERA franchisee and agrees to pay for a BPP when the house is sold, will insure the seller from failure of certain equipment (less a deductible) during the period the house is listed before sale.
The Issue At issue herein is whether respondents' real estate licenses should be disciplined for-the alleged violations set forth in the administrative complaint. Based upon all of the evidence, the following facts are determined:
Findings Of Fact At all times relevant hereto, respondent, Juan Rios, was a licensed real estate broker having been issued license number 0155126 by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent, Victoria R. Rios, is a licensed real estate broker-salesman having been issued license number 0331183 by petitioner. The Rios are husband and wife and presently reside at 855 80th Street, #1, Miami Beach, Florida. On December 13, 1982, Juan Rios obtained a six-month multiple listing agreement to sell a house located in Hacienda Estates at 11451 S.W. 33rd Lane, Miami, Florida. The agreement was executed by Rios "As Realtor" and by the property owner, Mercedes Garcia. At Mercedes' request, the Rios placed an initial sales price of $145,000 on the home. On December 15, a similar agreement was executed by Rios and Garcia on condominium unit 9B, Laguna Club Condominium, 10710 N. W. 7th Street, Miami, Florida. That property was also owned by Garcia. Although the agreement introduced into evidence does not contain Rios' signature, at final hearing Juan Rios acknowledged that he had executed such an agreement. The listing agreements provided that if the properties were leased during the term of the agreements, the listing realtor would receive a brokerage fee of 10% for such leasing. The agreement also provided that the realtors were not responsible for vandalism, theft or damage of any nature to the property. Garcia is a native and resident of Venezuela, where she owns a radio station. The two properties in question were previously owned by her father. When the father died, apparently sometime in 1982, Mercedes inherited the house and condominium. The Rios were friends of the father, and agreed to list and manage the properties as a favor to the deceased. Mercedes left the country after the agreements were signed, and has apparently not returned. Although she is the complainant who initiated this matter, she did not appear at final hearing. The house at 11451 S. W. 33rd Lane had been vandalized prior to the listing agreement being signed. According to documents introduced into evidence, the property has also been the subject of subsequent vandalisms, the nature and extent of which are unknown. A tenant was eventually procured by Mercedes' aunt in February, 1983 at a monthly rate of $800. The tenant, a Mrs. Ramirez, paid some $4,800 in rents and deposits before she was killed at the home in June, 1983. The Rios spent some $2,644.36 of the $4,800 on repairs to the vandalism and for general maintenance. They also retained a 10% commission for their services, or $480. That left $1,675.64 owed to Mercedes. No lease was apparently ever signed by Ramirez, or at least none was given to the Rios by the relative who procured the tenant. The home was eventually sold to Mercedes' aunt for $85,000.1 None of the rental monies were placed in the Rios' trust account. The condominium unit was rented in June, 1983. The tenant, Oscar Ruiz, had answered an advertisement run by the Rios in a local newspaper. Although Ruiz executed a lease to rent the unit at a monthly rate of $500, the Rios did not have a copy of same, and claimed none was kept in their records. According to the Rios, Ruiz continued to rent the unit through April, 1984, or for eleven months. Total monies collected by the Rios from Ruiz, including a $500 security deposit, were $6,000, of which $3,364.86 was spent for maintenance, utilities, two mortgage payments, and a $500 payment to the owner (Mercedes). An additional $40.33 was spent on a plumbing bill, and $600 was retained as a commission by the Rios. This left $2,724.53 owed to Mercedes. None of the rental monies were placed in the Rios' trust account. In the spring of 1984, Mercedes retained the services of an attorney in Miami to seek her monies due from the Rios. Up to then, she had received no income or accounting on the two properties. The attorney wrote the Rios on several occasions beginning in April 1984, asking for a copy of the lease on the condominium unit, the security deposit, an accounting of the funds, and all other documents relating to the two, properties. He received his first reply from the Rios on May 3, 1984 who advised him that they had attempted to reach Mercedes by telephone on numerous occasions but that she would never return their calls. They explained that rental proceeds had been used to repair vandalism damage and structural defects. When the attorney did not receive the satisfaction that he desired, he filed a civil action against the Rios on October 10, 1984. On October 26, 1984 the Rios sent Mercedes a letter containing an accounting on the two properties reflecting that she was owed $4,400.17 by the Rios. To pay this, they sent a $140 "official check," and a promissory note for the balance to be paid off in 40 monthly installments at 10% interest. They explained that their real estate business had closed, and due to financial problems, they were unable to pay off the monies due any sooner. They also asked that she instruct her attorney to drop the suit. Mercedes rejected this offer and has continued to pursue the civil action. It is still pending in Dade County Circuit Court. At final hearing, the Rios characterized their involvement with Mercedes as a "professional mistake," and one undertaken out of friendship for Mercedes' father. They acknowledged they did not use a trust account on the transactions and that they had used the $4,400 in rental money due Mercedes for their own use. They considered the excess rent proceeds to be compensation for other "services" performed by them on behalf of Mercedes. However, there is no evidence of any such agreement between the parties reflecting that understanding.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is Recommended that Juan and Victoria Rios be found guilty as charged in Counts II and III, and be found guilty of culpable negligence and breach of trust in Count I. It is further recommended that Juan Rios' license be suspended for one year and that Victoria Rios' license be suspended for three months. DONE and ORDERED this 20th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1986
Findings Of Fact Joseph Pine is a registered real estate salesman holding license certificate number 0131432 and was so registered on December 6, 1976. Joseph Pine entered a plea of guilty to the possession of a controlled substance, cannabis, over five (5) grams. The court withheld adjudication and placed Pine on supervised probation for three (3) years because Pine was living in Quba, Netherlands Antilles. The possession of a controlled substance, cannabis, is a violation of Section 893.13(1)(a)2., Florida Statutes. This is a felony of the third degree.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends the case be dismissed and no action be taken. DONE and ORDERED this 7th day of November, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1977. COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Harry L. Garber, Esquire Garber & Buoniconti, P.A. 1040 City National Bank Building 25 West Flagler Street Miami, Florida 33130
Findings Of Fact The Respondent is a licensed real estate salesman, having been issued license number 0073256 authorizing his practice in such a capacity in the State of Florida. The Petitioner is an agency of the State of Florida charged with enforcing the licensure and practice standards embodied in Chapter 475, Florida Statutes, for realtors in the State of Florida. From approximately April 16, 1977, through November 17, 1977, the Respondent, acting in the capacity of a real estate salesman, was employed by a broker by the name of Irwin Kane and Wintex Realty Corporation of Miami, Florida. That entity with Broker Kane was involved in the advertisement, promotion and sale of parcels of unimproved land in west Texas. The Respondent's duties involved making long-distance telephone calls to prospective purchasers of that land (in Cochran County, Texas), attempting to induce them to buy one or more parcels. In the course of this telephone sales campaign, in which the Respondent participated with approximately 20 salesmen making such phone calls, the Respondent used a script prepared for him by Irwin Kane, his employing broker. The script, in general, extolled the attributes of the unimproved property in an arid region of west Texas, representing that the land possessed favorable climatic conditions, water supply and soil conditions for agricultural purposes and was near property in which oil companies were interested. The Respondent contacted a potential buyer by phone who lived in Wisconsin and attempted to persuade the buyer to purchase a parcel of the property through use of the prepared "script" given him by his broker. That potential customer apparently became suspicious of the sales method, manner or assurances given by phone and ultimately was instrumental, along with the United State Attorney, in the filing of an indictment in the United States District Court for the Eastern District of Wisconsin, charging the Respondent (along with his broker, principals of the corporation and other salesmen) with the use of wire communication in furtherance of a scheme to defraud potential purchasers of real estate in violation of Title 18, United States Code, Section 1343. In that proceeding, the Respondent initially professed his lack of knowledge of the truth or falsity of the representations made in the prepared script his broker gave him and required him to use concerning the attributes of the west Texas land involved. Due in part to a dearth of financial resources to devote to litigation, the Respondent ultimately pled nolo contendere on November 7, 1978, to the charge involving using wire communication in a scheme to defraud. He was ultimately found guilty and was placed on probation for three years, with imposition of a sentence of imprisonment being suspended by the court. The Respondent had no part in the preparation of any written materials or "script" which he employed in making the telephone conversation and representations describing the supposed attributes of the property he was attempting to market on behalf of his employer, Broker Irwin Kane and Wintex Realty Corporation. That script was prepared by his broker or others and the Respondent read or consulted from it as he was communicating with prospective purchasers, but had no actual knowledge of its truthfulness or falsity with regard to the representations contained therein. He was shown to have made no representation or verbal communication which he knew to be false when he made it. The Respondent has been the subject of a disciplinary proceeding involving the same factual transaction in the past which culminated in a final order dismissing that administrative complaint. 1/
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law and the evidence in the record, it is RECOMMENDED: That the Respondent, Ed Rich, be found guilty of a violation of Section 475.25(i)(f), Florida Statutes, and that the penalty of a two (2) year suspension of licensure be imposed. DONE and ENTERED this 31st day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF 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 31st day of October, 1983. COPIES FURNISHED: Joel S. Fass, Esquire 626 Northeast 124th Street North Miami, Florida 33161 Mr. Ed Rich 1950 South Ocean Drive Hallendale, Florida 33009 Randy Schwartz, Esquire Assistant Attorney General Department of Legal Affairs Suite 212 400 West Robinson Street Orlando, Florida 32801 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
