The Issue The issue in this proceeding is whether Petitioner's loss of a real estate broker's license by a stipulated disciplinary suspension in 1983 is a proper bar to his mortgage broker application as principal broker for Center State Mortgage Company.
Findings Of Fact Terry E Christensen ("Christensen") was first licensed as a mortgage solicitor in 1983, under Chapter 494, Florida Statutes. In 1984, he obtained his mortgage broker's license. The licenses were renewed in 1984 and 1985. His employer was Cenflorida Mortgage Corporation in Altamonte Springs, Florida, where he served as principal broker and vice president. (Testimony of Christensen, Petitioner's Exhibit #1.) Christensen left Cenflorida Mortgage Corporation in April 1986, and started his own company, Center State Mortgage Corporation in Longwood, Florida. He immediately filed his application with the Department of Banking and Finance ("Department") for registration as principal mortgage broker with the new company. That application was denied by letter dated May 13, 1986, for violations of Section 494.05(1)(h) and (k), Florida Statutes. The letter provides, in pertinent part: The application is denied by the determi- nation of the Division of Finance that Section 494.05(1)(h) and (k is [sic] being violated. Section 494.05(1)(h) of the Mortgage Brokerage Act states that conduct of an applicant would be cause for denial of a license. Section 494.05(1)(k) states that a licensee may be denied a license if they currently have a real estate broker or salesman license under suspension. In your particular case, our records indicate that your real estate license has been suspended for a five year period, starting June 21, 1983. (Testimony of Christensen, Petitioner's Exhibits #1 and #2.) On June 29, 1983, the Florida Real Estate Commission suspended Christensen's real estate broker's license for a period of five years. Christensen first told the Department about his real estate broker's license suspension when he applied for license as a mortgage solicitor in 1983. (Testimony of Christensen.) Subsection 494.05(1)(k), Florida Statutes, was added to the statutes effective October 1, 1985. (Chapter 85-271, Laws of Florida.) Around the same time the new law took effect, the Department commenced revocation proceedings against Christensen. By its notice docketed on September 27, 1985, and its amended notice dated March 4, 1986, the Department informed Christensen that it intended to suspend or revoke his mortgage broker's license under Chapter 494 on the basis of his prior activities as a real estate broker. Those prior activities were the subject of a civil consent judgement against Christensen and his realty company and resulted in the stipulated suspension of his real estate broker's license addressed above. The Department's administrative proceeding #85-28-DOF was referred to the Division of Administrative Hearings and was assigned DOAH Case No. 86-0328. (Petitioner's Exhibits #3 and #4.) The parties stipulated to the facts, and on June 10, 1986, DOAH Hearing Officer, J. Lawrence Johnston, issued his Recommended Order recommending dismissal of the complaint. The Recommended Order provides: * * * 3. In this case, Petitioner, Department of Banking and Finance (Department), has not established in the evidentiary record or anywhere else in the official record of this case that the real estate broker license of Respondent, Terry E. Christensen (Christensen), was suspended based on fraud, misrepresentation, or deceit. As seen in the Procedural Background, Christensen sufficiently generally placed in issue whether suspension of his real estate broker's license was based on fraud, misrepresentation, or deceit. The Department did not succeed in pre-hearing procedures to specifically eliminate the issue. The facts stipulated by the parties are not sufficient to prove that the suspension of Christensen's real estate broker license was based on fraud, misrepresentation, or deceit. Although a copy of the Administrative Complaint in the Florida Real Estate commission case was referred to in the copy of the Florida Real Estate Commission Stipulation that was filed in this case, it was not attached to the Stipulation or otherwise made part of the evidentiary or official record in this case. This Hearing Officer is therefore given no choice but to conclude that the Department has not proven its case. * * * (Petitioner's Exhibit #5.) The Department adopted the Recommended Order in its entirety and dismissed the case. (Petitioner's Exhibit #7.) From 1983 until mid-1986, Christensen processed approximately five hundred mortgage loan applications with an approximate value of $50,000,000.00. To his knowledge, no complaints have ever been made to the Department regarding Christensen's activities as a mortgage solicitor or broker. (Testimony of Christensen, Petitioner's Exhibit #6.)
Recommendation Based on the foregoing, it is recommended that a Final Order be issued granting the mortgage broker's license to Terry Christensen. DONE and ORDERED this 7th day of November, 1986, in Tallahassee, Florida. MARY CLARK 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 7th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2498 The following constitute my specific rulings on the proposed findings of facts submitted by the parties. PETITIONER'S FINDINGS OF FACT 1-3. Adopted in Paragraph #1. 4-5. Adopted in Paragraph #5. Rejected as irrelevant. Adopted in Paragraph #3. 8-12. Adopted in Paragraph #4. 13. Rejected as unnecessary. 14-15. Adopted in Paragraph #4. 16-18. Rejected as unnecessary. RESPONDENT'S FINDINGS OF FACT 1. Adopted in Paragraph #1. 2-4. Adopted in Paragraph #4. 5. Rejected as unnecessary. 6-8. Adopted in Paragraph #4. 9. Rejected as immaterial. 10-11. Adopted in Paragraph #2. 12-16. Rejected as immaterial. 17. Adopted, as to the first sentence, in paragraphs #3 and #4; otherwise, rejected as immaterial. COPIES FURNISHED: Gorham Rutter, Jr., Esquire Suite D 338 North Magnolia Avenue Orlando, Florida 32801 Robert Good, Esquire Suite 501 400 West Robinson Street Orlando, Florida 32801 Honorable Gerald Lewis, Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32301 Charles Stutts, Esquire General Counsel Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32301
The Issue Whether Respondent committed various violations of Chapter 475, Florida Statutes, sufficient to justify the imposition of disciplinary measures against her license as a licensed Real Estate Salesperson.
Findings Of Fact Respondent Barbara Gordon Schneider, at all times material to this matter, was a licensed Florida Real Estate Salesperson, holding license no. 0481077 with an address of 5825 Indian Trail, Keystone Heights, Florida 32656-9773. As a consequence of previous disciplinary action, Respondent’s license has been suspended since February 17, 1995, due to non-payment of a fine. Basically, that case revolved around a finding of Respondent’s guilt of culpable negligence and operating as a broker while licensed as a salesperson. Respondent did not inform her then current employer, Coursey and Associates Real Estate (Coursey and Associates) of the February 1995 suspension of her license. Additionally, as documented by a certified copy of judgment admitted at final hearing as Petitioner’s Exhibit 2, Respondent also failed to notify Petitioner of Respondent’s plea of guilty to a felony charge of obtaining property in return for a worthless check in the Fourth Judicial Circuit, Clay County, Florida, on December 19, 1989. Adjudication was withheld by the Court and Respondent was placed on probation for 18 months. On or about July 14, 1995, while employed as office manager and selling manager for Coursey and Associates, Respondent prepared a contract for sale and purchase for Flint and Jessica Banther as buyers for property located at 2276 Chablis Court, West, Orange Park, Florida. Also, Respondent negotiated an occupancy agreement whereby the Banthers agreed to rent the property they were planning to purchase. Kevin Coursey, the broker for Coursey and Associates, had no knowledge of this transaction although Respondent signed the occupancy agreement on behalf of Coursey and Associates. On or about July 14, 1995, the Banthers gave Respondent a $500 cash binder for the purchase of the Chablis Court property. The money was not turned over to her employer by Respondent. Respondent had previously procured, on or about May 17, 1995, a listing agreement on behalf of Coursey and Associates for a home owned by Gary J. and Agnes Beagles which was located at 4854 Gopher Circle North, Middleburg, Florida. Respondent rented the Beagles’ home to Christine and Jim Weaver, without the knowledge or permission of Kevin Coursey on behalf of Coursey and Associates. Coursey and Associates were not in the business of brokering rental property and had no insurance to cover such activity. Respondent was accepting checks from the Weavers and depositing them into the Beagles’ bank account. On or about June 23, 1995, Christine Weaver made check no. 2952 in the amount of $250 payable to Coursey and Associates. Respondent endorsed the check by writing “Coursey & Assoc.” On the back of the check and signed her name with “co-owner” written under her name. Kevin Coursey did not authorize Respondent to endorse the check. Respondent never informed Kevin Coursey of the check’s existence and deposited it into her personal bank account at the Jax Navy Federal Credit Union without Coursey’s authorization. Respondent also procured renters for the Weavers’ home without the knowledge and consent of her employer. Initially, Robert and Pamela Campbell, the renters of the Weaver home, gave Respondent a check which was returned for insufficient funds. When the check was returned, the Campbells gave Respondent cash in the amount of $600 in place of the check. Respondent did not turn the cash over to the Weavers and, as a result, Coursey and Associates were later compelled to pay the Weavers the $600. Sometime around July 26, 1995, Respondent prepared a contract for sale and purchase for Charles Crum as the buyer of property located at 5615 Indians Trail, Keystone Heights, Florida. Crum gave Respondent a binder for the property consisting of three money orders totaling $500. The money orders were payable to Coursey and Associates, but Respondent did not deliver the funds to her employer. Approximately three weeks later, Respondent did deliver the binder, in the form of a different set of money orders, to Kevin Coursey. At some point prior to July 30, 1995, Respondent negotiated the rental of property owned by Mr. and Mrs. Richard J. Connell. The renter was James Cawley. This was accomplished without knowledge or consent of Kevin Coursey, although Respondent led the Connells to believe that the property was being rented through Coursey and Associates. The Connells never received the cash security deposit paid to Respondent by Cawley. By letter dated September 19, 1995, Richard J. Connell and James L. Cawley informed Coursey and Associates of Connell’s entry into a rental agreement with that firm on February 25, 1995. Respondent had negotiated the agreement which provided that Cawley would initially rent the property for $350 a month until he established credit for the purchase. Respondent, it was agreed, on behalf of Coursey and Associates, would collect the rent every month. Coursey and Associates would receive a ten percent commission on the rental proceeds and also retain $65 per month in escrow for repairs. Respondent signed the Connells’ names to the agreement without their consent. Respondent left the employ of Coursey and Associates, without notice, on or about July 30, 1995, and contacted Martha J. O’Shields, co-broker for Century 21 Bryant and O’Shields Realty, about coming to work for O’Shields. Respondent did not tell O’Shields that Respondent’s salesperson license was suspended. O’Shields hired Respondent. On or about August 2, 1995, Respondent negotiated a contract for sale and purchase of the property owned by the Beagles. Coursey and Associates were, of course, the listing agents. Instead of presenting the offer to Coursey and Associates, Respondent presented the offer directly to the owners. Respondent signed the contract on behalf of Coursey and Associates, although she was then working for O’Shields. Respondent had the buyers of the property sign a consent to dual agency although she was not acting as a dual agent and had not been authorized by O’Shields to present the offer in this fashion. On or about August 2, 1995, Respondent proceeded to list the buyers’ property located at 1594 Twin Oaks Drive West in Middleburg, Florida, on behalf of Bryant and O’Shields. O’Shields discovered on or about August 15, 1995, that Respondent had taken all files upon which she was working from the office. By letter dated August 18, 1995, O’Shields notified Petitioner that she had terminated Respondent’s employment on August 15, 1995. According to O’Shields’ notification, Respondent had sales pending and O’Shields had not been previously aware of Respondent’s license suspension.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a final order be entered finding Respondent guilty of counts I through V, counts VII through VIII, counts X through XII, counts XV through XVI, and counts XIX through XXI of the Administrative Complaint and revoking Respondent’s license. DONE AND ENTERED this 28th day of January, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 28th day of January, 1999. COPIES FURNISHED: Laura McCarthy, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801-1772 Barbara Gordon Schneider 5086 Granny's Place Keystone Heights, Florida 32656 James Kimbler, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent's license should be revoked as set forth in the Notice of Intent to Revoke License.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating yacht salesmen and brokers. Such authority includes the discipline of yacht salesman as set forth in Chapter 326, Florida Statutes. At all times material to the allegations of this case, Respondent has been licensed as a yacht salesman in the State of Florida. Respondent first applied for licensure in June of 1994. This license request was granted and Respondent was issued a license for the two-year period 1994-1996. In June of 1996, Respondent applied to renew the license. This license request was also granted and Respondent was issued a yacht salesman's license for the period 1996-1998. On or about April 28, 1997, Respondent was convicted of conspiracy to commit wire fraud, a federal violation, and a felony. As a result, Respondent was sentenced and incarcerated. In July of 1998, Respondent applied to the Department to renew the yacht salesman's license. Based upon the information submitted to Petitioner at the time he sought renewal, the Department had no direct information of the felony conviction. In telephone conversations with the Department staff, Respondent did not disclose he had been incarcerated, was living in a halfway house as part of his sentence, and was a convicted felon. In August of 1998, a third party advised the Department that Respondent had the felony conviction. Thereafter, upon such notice, Petitioner took action to seek revocation of Respondent's license. The license renewal for 1998 filed by Respondent was executed on July 7, 1998. Technically, his license expired on June 14, 1998, but he was afforded a grace period within which to process the renewal. To this end the Department attempted to accommodate the renewal applicant. On the license renewal card Respondent submitted conflicting answers. To question (3) which read: Have you been convicted of a crime, found guilty, or entered a plea of nolo contendere, since initial licensure? Respondent answered "Y." To question (4) which read: Has any judgment or decree of a court been entered against you or is there now pending any case in this or any other state, in which you were charged with any fraudulent or dishonest dealing? Respondent answered "N." An undated letter from Respondent accompanied the renewal card which referred to a prior correspondence with the Department of June 6, 1996, as the explanation for question (4). As to question (3), the letter stated: "a conviction was made on 4/28/98 in the U.S. District Court Southern Florida." Respondent's answer to question (4) was false. Moreover, the manner in which Respondent answered the two questions did not disclose that Respondent had been convicted of a felony or conspiracy to commit wire fraud. More telling of Respondent's attempt to mislead the Department, however, is his failure to disclose any of the foregoing circumstances during telephone conversations with staff seeking to assist him to renew the license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order revoking Respondent's license. DONE AND ENTERED this 29th day of June, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 29th day of June, 1999. COPIES FURNISHED: Philip Nowick, Director Florida Land Sales, Condos, Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Scott K. Edmonds, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Tracy J. Sumner, Esquire Tracy J. Sumner, P.A. 1330 Thomasville Road Tallahassee, Florida 32303
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Edward T. Bauer, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Withdrawal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Autocar, LLC, and K.V.P. Enterprises, Inc. d/b/a Expert Diesel to sell trucks manufactured by Autocar, LLC, (AUTC) at 4700 Oakes Road, Fort Lauderdale (Broward County), Florida 33314. DONE AND ORDERED this Ard. day of May, 2012, in Tallahassee, Leon County, Florida. y rom a CL altace “~Ffilie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed in the official records of the Division of Motorist Services this ard day of May, 2012. Nalini Vinayak, Dealer Wicense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jde Copies furnished: Edward Quinton, Esquire Adams, Quinton, and Paretti, P.A. Brickell Bayview Center 80 Southwest 3” Street, Suite 2150 Miami, Florida 33130 Karen Putter K.V.P. Enterprises, Inc. 681 Northwest 108" Avenue Plantation, Florida 33324 Bernard M. Schulte Autocar, LLC 551 South Washington Street Hagerstown, Indiana 47346 Dean Bunch, Esquire Nelson, Mullins, Riley, And Scarborough, LLP Suite 200 3600 Maclay Boulevard, South Tallahassee, Florida 32312 Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint? him? If so, what disciplinary action should be taken against
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a Florida-licensed real estate salesperson. He holds license number 0186760. From October 1, 1991, through September 30, 1993, Respondent's license was inactive. His address of record during this period was 290 174th Street L11, North Miami Beach, Florida 33160. On October 1, 1993, Respondent's license became involuntarily inactive due to non-renewal, and it remained in involuntary inactive status through August 11, 1996. Respondent's address of record during this period remained 290 174th Street L11, North Miami Beach, Florida 33160. On June 1, 1995, after having successfully completed a license reactivation course at the Gold Coast School of Real Estate,1 Respondent went to The Keyes Company to apply for a position as a sales associate. The Keyes Company is now, and was at all times material to the instant case, a corporation registered in Florida as a real estate broker. During his visit to The Keyes Company, Respondent completed (with the assistance of a Keyes Company secretary) and signed various forms, including a Department-issued "Request for License or Change of Status" form (400.5 Form). The 400.5 Form contained three sections: Section A, the "action requested" section; Section B, which was to be "completed by [the] licensee applying for [the] change"; and Section C, which was to be "completed by [the] broker/employer if the applicant [was] requesting active salesperson or broker-salesperson status." On the reverse side of the 400.5 Form were instructions, which indicated, among other things, that if the licensee was seeking to renew his or her license, the 400.5 Form had to "be accompanied by the required fee." In Sections A and B of the 400.5 Form, Respondent indicated, among other things, that he was seeking to renew his license and gain active status and that his "residence address" was 2182 Northeast 186th Terrace, North Miami Beach, Florida 33179. Although there was a box on the top of the form that he could have checked to reflect that this was a "change [of] residence address," he failed to do so. After completing Sections A and B, Respondent signed and dated the partially completed 400.5 Form. The secretary who assisted Respondent in filling out the 400.5 Form (Secretary) told Respondent that The Keyes Company would complete Section C of the form and then mail it to the Department for processing. She further advised Respondent that she would let him know in a few days "exactly how much [he] would have to pay" the Department to obtain the "[c]hange of [s]tatus" he was requesting. Three or four days later, the Secretary contacted Respondent and informed him that he had to pay a $90.00 fee to the Department. Respondent relied upon the information that the Secretary had given him regarding the amount of the fee he had to pay. He made no effort to contact the Department to verify the accuracy of the information. On June 5, 1995, Respondent wrote a $90.00 check, payable to the Department, and left it with the Secretary for her to mail, along with the completed 400.5 Form, to the Department. The Keyes Company's payroll clerk, Rosa Miguelena, thereafter contacted the Department by telephone to confirm that $90.00 was the amount that Respondent had to pay. The person with whom she spoke told her that the total fee for late renewing a license was $90.00 ($65.00 for the renewal and a $25.00 late fee). The completed 400.5 Form (Section C of which had been filled in and signed on June 9, 1995, by Ray Shaw, a Vice President of The Keyes Company) and the $90.00 check, as well a copy of Respondent's reactivation course completion certificate, were subsequently sent to the Department. The check was deposited by the Department on June 19, 1995. The $90.00 was insufficient to cover the amount necessary to renew and activate Respondent's license for the upcoming two-year renewal cycle commencing October 1, 1995.2 Accordingly, on or about June 23, 1995, the Department sent, by United States Mail, a letter to Respondent, which read as follows: We are returning the attached for the following reasons: (X) Request not accompanied by the total fee of $153.00. You need to send additional $63.00 in order for us to process your renewal. (X) To be credited for the fee accepted, THIS DOCUMENT MUST BE RETURNED TO THE DIVISION OF REAL ESTATE. PLEASE RETURN ALL OF THE ATTACHED, ALONG WITH A COPY OF THIS LETTER. The letter was mailed to the address (2182 Northeast 186th Terrace, North Miami Beach, Florida 33179) that Respondent had indicated, on the 400.5 Form, was his "residence address." At the time the letter was mailed, Respondent still resided at this address. Nonetheless, Respondent never received the letter in the mail. This is not the only time that mail addressed to Respondent at 2182 Northeast 186th Terrace, North Miami Beach, Florida 33179 has not been delivered to him by the United States Postal Service. It has been a recurring problem. Had Respondent received the letter, he would have taken the additional steps needed to renew and activate his license. Not having heard anything from either the Department or The Keyes Company regarding the matter, he erroneously assumed that his license had been renewed and activated, and he acted accordingly. On or about January 18, 1996, Respondent, acting in his capacity as a Keyes Company sales associate, procured Vito Verzura as a buyer for real property located in Dade County, Florida that was owned by Jack Poulas (Property). On or about February 1, 1996, The Keyes Company issued to Respondent a check in the amount of $676.00 as commission for his role in the Vito Verzura/Jack Pulos transaction. On or about June 25, 1996, Respondent, acting in his capacity as a Keyes Company sales associate, procured listing agreements with Vito Verzura regarding the Property. The listing agreements provided that the listing agent(s) would be paid 10% of the sales price. In late June or early July of 1996, after speaking with a Keyes Company secretary who questioned whether he was associated with the company, Respondent telephoned the Department to inquire whether his license was active. The Department representative with whom he spoke advised him that the Department's records revealed that his license had never been activated. Respondent then contacted The Keyes Company to discuss the matter. He expressed his desire to have his license activated as soon as possible. The Keyes Company told Respondent that he needed to pay the Department an additional $125.00. On or about July 9, 1996, Respondent wrote a check in the amount of $125.00, payable to the Department, which he gave to The Keyes Company to deliver to the Department. On that same date, he also signed (but did not date) another Department-issued "Request for License or Change of Status Form." The check, along with the signed form (Section C of which was left blank), were subsequently sent to the Department. The Department received these items on or about August 12, 1996. It deposited the check on August 14, 1996. Because Section C of the "Request for License or Change of Status Form" was left blank, the Department changed the status of Respondent's licensure, effective August 12, 1996, to voluntary inactive rather than to active. The Department sent Respondent a letter informing him of the change. The letter contained the following "explanation": The Division of Real Estate computer records do not reflect you to be in the employ of a licensed real estate broker, a registered broker corporation or broker partnership, or an unlicensed owner developer at this time. Please have the attached form 400.5 completed by both you and your employer and returned in the enclosed envelope if your license status should be shown as active. On February 27, 1997, the Department received from Respondent a completed "Request for License or Change of Status Form," which reflected that he was employed by Gerard International Realty, a duly registered broker. After receiving this form, the Department activated Respondent's license. At no time prior to February 27, 1997, did Respondent hold a valid and current active real estate salesperson license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a final order finding Respondent guilty of the misconduct alleged in the Administrative Complaint and disciplining him therefor by reprimanding him and fining him $750.00. DONE AND ENTERED this 14th day of April, 1999, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1999.
Findings Of Fact Respondent is a certified general contractor holding license number CG C008351. Respondent obtained Osceola County Building Permits and agreed to help property owners construct improvements or additions to four motels located in Osceola County, Florida. (Testimony of Record, Popesco, Matay, Solms, respondent.) Specifically, on January 29, 1980, respondent pulled Osceola County Building Permit ("building permit") No. 364-80B to construct the Record Motel, an 11-unit motel owned by Frank B. Record. On March 17, 1981, respondent pulled building permit No. 694-81B to construct a five-unit addition to the Record Motel; on January 30, 1980, he pulled building permit No. 2613-80B to add eight units to the Lakeview Motel owned by Michael Popesco; on February 2, 1980, he pulled building permit No. 2996-81B to construct a 20-unit motel known as The Key Motel, owned by Reinhold Matay; on April 8, 1981, he pulled building permit No. 3087-81B to construct a second floor addition to The Key Motel; and on March 2, 1981, he pulled building permit No. 3038-81B to construct a 20-unit motel known as the Siesta Motel, owned by Herbert Solms. (Stipulation dated June 30, 1982.) II. Respondent had a similar working arrangement with each motel owner, none of whom were licensed contractors. As the general contractor, he pulled the necessary building permits. He would perform the carpentry work on each project. The owners actively supervised and participated in their building projects. After consulting with respondent, they solicited, selected, and awarded bids to electrical, masonry plumbing, paving, and drywall subcontractors. They paid subcontractors directly and supervised their work daily. Respondent, however, would inspect the job sites intermittently, usually on weekends, sometimes during the week. But he did not directly and actively supervise the subcontractors; some were even unaware that he was the general contractor for the job. (Testimony of Record, Popesco, Matay, Solms; P-3, P- 10.) No evidence was presented to establish that the owners, for compensation, constructed these improvements for others or for resale to others. All the buildings were constructed in a satisfactory manner. The buildings passed all inspections, and the owners are entirely satisfied. (Testimony of Record, Popesco, Matay, Solms, respondent.) The owners of the various motels did not act as "contractors" within the meaning of Section 489.105(3), Florida Statutes (1981).
Recommendation Based on the foregoing, it is RECOMMENDED: That the charges against respondent be dismissed. DONE and RECOMMENDED this 14th day of October, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR., Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1982.
The Issue The issue for consideration in this case is whether the Respondent's license as a real estate broker in Florida should be disciplined because of the matters set out in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Florida Real Estate Commission was the state agency responsible for the regulation of the real estate profession and the licensing of real estate professionals in Florida. The Respondent, Gabor A. Banfi, was licensed as a real estate broker in this state and has held a real estate license since 1981. In April, 1990, a claimant sued Banfi Realty, Inc., located at 807 NE 8th Street, Delray Beach, and owned by the Respondent, for allegedly concealing defects in a property he had sold. The claimant secured Final Judgement against Banfi Realty in August, 1990, amended in September, 1990 as to amount only. In November, 1990, the claimant sued Respondent indiovidually. Before that suit was judicially resolved, in January, 1991, Respondent and the claimant entered into a stipulation whereby Respondent would pay a lesser amount than was called for in either the suit against him or in the judgement against his company. Thereafter, in May, 1991, the claimant also got a judgement against the Respondent, and, after Respondent had paid 3 monthly payments of $25.00 each called for under the terms of the stipulation, on August 1, 1991, the claimant notified the Commission of a possible recovery fund claim. She asserted that her diligent search and inquiry had failed to locate any assets of Mr. Banfi to satisfy the final judgement. By Final Order dated October 16, 1991, the Commission paid the claimant $866.25 as the amount due from Respondent, and, coincidentally therewith, suspended Respondent's license as a broker until such time as he reimbursed the fund in full the amount paid the claimant. The certificate of service on this Final Order reflects that a copy was sent by US Mail to the Respondent at his Banfi Realty, Inc. address, 807 NE 8th Street, Delray Beach, on October 21, 1991. The evidence shows, however, that in April, 1990, approximately 18 months prior to the entry of the Commissions Final Order suspending his license, Respondent closed Banfi Realty, Inc. and went to work with Prudential Florida Realty in July, 1990. At that time, Respondent signed a request to register the Prudential Florida Realty as his employer and, to the best of his knowledge, the management of that firm was to forward this form to the Commission. Respondent believed this was done. However, he received neither confirmation of the change nor notice it had been denied. This did not disturb him, however, since his understanding was that no acknowledgment was sent out. He had renewed his license in April, 1990, and was not due to again renew until April, 1992. Petitioner failed to present any evidence to indicate whether Respondent's change of address was ever received by the Commission. The documentation in his licensure file kept at the Commission reveals that in February, 1992, Geraldine Spinella, Vice President of the Prudential office where Respondent went to work, wrote to the Commission and enclosed what purported to be a copy of the form 400.5 sent in on or about July 2, 1990, reflecting The Prudential Florida Realty, 160 SE 6th Avenue, Delray Beach, as his new employer. No evidence in rebuttal was submitted by the Department. Respondent unequivocally denied having received any notice of the Fund payment from the Commission. It is noted that approximately 30 days after Respondent signed the form 400.5 in July, 1990, The Prudential Florida Realty changed its name to FMT Holding Ltd., t/a The Prudential Florida Realty, and a second form 400.5, reflecting Respondent's new business address was sent in. In February, 1992, Respondent learned from an associate that the then most recent Commission newsletter reflected the Final Order regarding the Fund pay out and his resultant license suspension. On February 12, 1992, Respondent sent in his check to reimburse the Fund in full for its pay out. The accompanying letter reflected Respondent's home address of 2001 SW 15th Avenue in Boynton Beach. Nonetheless, the Department's letter of acknowledgment dated February 26, 1992 was sent to the invalid Banfi Realty, Inc. address. At the same time he sent in his repayment, Respondent had Prudential send in another request for employee registration change, (Form 400.5), which included a copy of the prior form sent in previously. (See FOF #6, supra.) Thereafter, Respondent's license was reinstated and renewed for 2 years on April 1, 1992. Respondent admits that during the period his license was suspended, he continued to operate and do business as a broker. He claims not to have known of the suspension, however, and asserts in support of his claim that he had been elected President of the Delray Beach Board of Realtors and consciously would have done nothing to jeopardize his ability to serve in that position or to jeopardize his ability to earn his living in the real estate profession. In late July, 1992, in response to an inquiry by Prudential, Respondent was advised that his address change had been entered on the Commission records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered concluding that Respondent had operated as a real estate broker in Florida without a valid and current active license therefor, but assessing no further penalty because of the mitigating circumstances shown to exist regarding notice to him of the existence of the suspension. RECOMMENDED this 31 day of August, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3326 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 3. Accepted and incorporated herein. Accepted and incorporated herein. Accepted but noted that the service was made to Respondent's former address, a change from which had previously been noticed to the Commission. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. Copies furnished: James H. Gillis, Esquire DPR - Division of Real Estate Suite N-308, Hurston Building 1400 W. Robinson Street Orlando, Florida 32801-1772 Gabor A. Banfi FMT Holding Company, Ltd. The Prudential Florida Realty 160 South 6th Avenue Delray Beach, Florida 33483 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact Respondent Cherylyn Stoppler, at all times pertinent hereto, was licensed as a real estate saleswoman in the State Of Florida, holding license No. 0467803. Her last and current license was issued authorizing practice at Escambia Realty, Inc., 310 South Pace Boulevard, Pensacola, Florida 32501. Respondent Dorothy Diane Owens, at all times pertinent hereto, was a licensed real estate broker in the State of Florida, holding license No. 0380831. Respondent Escambia Realty, Inc., at all times pertinent hereto, was a licensed corporate real estate brokerage holding license No. 0232503. Its address is 310 South Pace Boulevard, Pensacola, Florida 32501. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 475, Florida Statutes, related to the licensure of real estate brokers and salesmen, the real estate professional practice standards embodied in that chapter and with prosecuting alleged violators of those standards. On April 13, 1986, Kenneth and Linda Williams, also known as Linda Brewer, requested that Cherylyn Stoppler show them rental property consisting of a single family residence located at 6853 Lake Charlene Drive in Pensacola. They had observed the Respondent corporate broker's sign on the front of that premises, advertising it for rental. Respondent Stoppler, Respondent Owens and the Escambia Realty, Inc. represented the owners of the property. Kenneth and Linda Williams examined the property and decided that they wanted to rent it. In their discussion with Cherylyn Stoppler concerning the terms of the rental arrangement, they requested that they be allowed to paint the premises and that the garage door be repaired. Respondent Stoppler agreed to this and indicated the owners would supply two gallons of paint and the prospective tenants, the Williamses, could do the painting with the owners ensuring repair of the garage door. Respondent Stoppler and the Williamses agreed to those terms and to the rental amount of $625 per month. They also agreed to pay Respondent Stoppler a $400 deposit, on behalf of the owners. Ms. Stoppler informed the Williamses that if they did not consummate the lease arrangement, upon which they had verbally agreed, the $400 would be retained and remitted over to the owners of the property. The Williamses agreed to this arrangement. The Williamses and Ms. Stoppler returned to Ms. Stoppler's office and she noted these terms on a lease agreement form with the additional term that the owner would steam clean the carpet in the house. The lease terms also provided that the premises would be used by no more than two adults and "zero" children, but the lease agreement has the "zero" stricken through indicating that that term was to be deleted. The striking of the zero on the term concerning the number of children to occupy the premises appears to have been executed with the same pen, inasmuch as the ink is the same color as the rest of Mrs. Stoppler's handwritten terms on the lease form. In any event, the Williamses were anxious to return to their home in Louisiana directly from the Respondent's office that same afternoon and to accommodate them Ms. Stoppler agreed to mail the lease form to them to be executed, urging them to send it back immediately. When they left the premises that day, Respondent Stoppler removed her firm's sign from the front of the premises and also told the Williamses that the property would be off the market as of that day, hence her admonishment to them to waste no time in returning the executed lease since the property would be off the market during the interim on the strength of the verbal agreement. The Williamses did not inform Ms. Stoppler that Mr. Williams had two children who might visit them from time to time or live with them at the premises. The Williamses returned to Louisiana and the lease was mailed to them by Ms. Stoppler. The Williamses decided not to execute the lease and to not consummate the rental arrangement. They informed Ms. Stoppler of this by phone on April 24, 1986, as well as communicating on that day with Respondent Owens. They indicated they did not desire to rent the premises and one reason given was that they felt that the two children were precluded by the lease terms from living on the premises for any period of time with them. In fact, the Williamses had never mentioned that they had any children and had sought to negotiate a reduction in the rent when they originally discussed the matter with Ms. Stoppler on the basis that only the two of them would live in the premises. The terms and conditions of the rental arrangement were those given to Ms. Stoppler by the Williamses themselves. When they conferred with Ms. Owens and Ms. Stoppler, they were again informed that the $400 would be retained and transmitted to the owners, to which they did not then object. In fact, they never did make any demand upon the Respondents for return of the $400 which was actually communicated to the Respondents. There is a letter in evidence (Petitioner's Exhibit 6) which the Respondents never received, as is shown by the certified mail receipt card and by Respondents' and Ms. Celano's testimony. The Williamses objected to consummating the lease because they contended that Ms. Stoppler had assured them that they could 1ive in the premises rent- free from the beginning of the lease, April 26, until May 1, during the time in which they would be painting the house and instead they were being charged $84 for those days. Mrs. Williams' testimony is somewhat equivocal in this regard in that she exhibited an incomplete memory regarding certain critical dates in the transaction, for example, the date she allegedly called Mrs. Stoppler to inform her of their refusal of the rental and the date she believed the lease was to commence. Mrs. Stoppler's testimony was corroborated by that of Ms. Owens, and was not refuted by the Williamses. It is accepted over that of Mrs. Williams in establishing that indeed the lease period and the rental there for was to commence on April 26. The Respondents' testimony shows that the house was off the rental market from April 13, when the verbal agreement with Ms. Williams was entered into and the sign was removed from the property and that both Respondents informed Mrs. Williams on two occasions that the $400 was not refundable but would be remitted to the owners of the property. The Respondents also established that Escambia Realty, Inc. followed a consistent policy of retaining deposit monies and remitting them to the owners without refund to prospective tenants when the tenants agreed to lease the premises after being informed that the deposit would be retained and the property taken off the market, when such tenants elect of their own volition to negate a lease or rental agreement. The Williamses additionally maintained that they did not want to consummate the lease arrangement because, in their view, the Respondents and the owners would not permit any children unrestrictedly visit or to live on the premises. That was established not to be the case. They also objected because they would not be allowed to live in the premises rent-free for several days during the time in which they were painting the premises. Additional objections involved various inconsequential technical deficiencies, such as misspellings, in the content of the lease. The employment position Mr. Williams was to have taken in the Pensacola area, and which was in large measure their reason for moving to Pensacola and renting the subject premises, failed to materialize. Ultimately, however, the Williamses moved to Pensacola and rented a different house at the lower rate of $600 per month. In short, the complaining witnesses contend that they did not want to execute the lease because of the problem of the $84 prorated rent required of them by the Respondents and the owners for the days when they thought they would live rent-free while painting the premises, because they felt that Mr. Williams' children by a previous marriage were precluded from unrestricted visits at the rental premises and because they felt that the proffered lease did not contain the proper initial date of tenancy. Thus, the Williamses breached the agreement because the Respondents refused to "correct" the lease according to the Williamses' desires. Those desires were not communicated to the Respondents until, at the very earliest, the phone conversations of April 24, 1986, some twelve days after the verbal agreement to rent the premises to the Williamses had been entered into and the $400 deposited with the Respondents on behalf of the owners. During that time, and longer, the property was taken off the rental market and the Respondents and the owners forbore the opportunity to secure other tenants. The Williamses themselves acknowledged that the letter by which they sought return of the $400 deposit was never actually received by the Respondents. Further, Ms. Williams in the telephone conversation on April 24, 1986, acknowledged that the owners were entitled to the $400 deposit. Even so, Ms. Owens waited approximately 25 days before remitting the funds over to the owners. Thus, no dispute as to the deposit was ever communicated to the Respondents, and the Respondents never misrepresented to either Mr. or Mrs. Williams the manner of disbursement of the deposit funds. It is noteworthy that Mrs. Williams is a licensed realtor herself and had some experience in similar real estate transactions. The Respondents carried out their portion of the bargain. Finally, it has been demonstrated that Respondent Owens is a well- respected real estate practitioner in the Pensacola area, having served as an officer and director of her local board of realtors and having been accorded a number of honors and certifications in connection with her professional performance as a realtor and her securing of advanced training in the field of real estate brokerage. Ms. Stoppler is relatively new to the profession, but neither she nor Ms. Owens have been shown to have ever engaged in any questionable practice or conduct in the course of their practice and neither have been shown to have been the subject of any other complaint of any nature resulting from a real estate transaction.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Administrative Complaint against Respondents Cherylyn Stoppler, Dorothy Diane Owens and Escambia Realty, Inc. be dismissed in its entirety. DONE and ORDERED this 28th day of 1987, in Tallahassee, Florida. P. MICHAEL RUFF 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 28th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3982 Petitioner's Proposed Findings of Fact: 1-4. Accepted. Rejected as a recitation of testimony and not a Finding of Fact. Rejected as to its material import. 7-9. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 10-11. Accepted. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Accepted. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Accepted. Rejected as to its material import. 17-18. Accepted. 19. Rejected as to its material import. 20-21. Accepted. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as to its material import. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import. Accepted, but rejected as to its material import. Accepted. Rejected as to its material import. 29-30. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 31. Accepted, but not as to its material import. 32-35. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as to its material import. Accepted, but not to the effect that a demand for refund was made. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 39-41. Rejected. Respondents' Proposed Findings of Fact: Specific rulings are not separately made here because Respondents' Proposed Findings of Fact are inseparably entwined with legal argument and recitations of, and arguments concerning, the weight and credibility of testimony and evidence. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Cherylyn Stoppler Dorothy Diane Owens Escambia Realty, Inc. 310 South Pace Boulevard Pensacola, Florida 32501 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
