Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Division of Real Estate, (Division), was the state agency responsible for the regulation of the real estate profession in Florida. At the same time, Respondent, Thomas Twitty, Jr. was a licensed real estate broker in Florida, operating under license number 0090569, and was broker for the Respondent, Twitty and Company, Ltd., which operates under license number 0211681 at 13090 B. Starkey Road, Largo, Florida. Respondent, Lonnie A. Fitton, was a licensed real estate salesman under license number 0442127. On March 12, 1985, while employed as a salesman with Twitty & Company, Ltd., Fitton solicited and obtained from James L. Schneider a sales listing for Schneider's house located at 1316 Kennywood, Largo, Florida. The listed sales price was $129,500.00. Mr. Schneider had purchased the property, along with another individual no longer involved, Mr. Daly, from Pioneer Federal Savings and Loan Association in December, 1984 for $50,000.00 in a distress sale. The property had been occupied but was abandoned, and Pioneer, which had held the mortgage on it, gained title in a foreclosure action. When Schneider purchased the house, it was in poor condition. The walls and cement slabs on which it rested were severely cracked in numerous places. The foundation, pool decking, and decorative block walls were severely cracked, and it was determined that this condition was due to an abnormal settling and subsidence of the ground on which the house had been constructed. This settling caused and continues to cause door and window frames to fall out of square resulting in a poor fit and, in many cases, large gaps and along the window and door parameters. After Mr. Schneider purchased the property, Fitton, along with Fitton's father, both of whom resided next door to the property in question, assisted Mr. Schneider in making repairs to the property. Cracks were filled in with cement, plaster and caulking, and the property was painted which covered up the filled in cracks and gaps which had existed. When the repairs were completed, the property was put on the market with Fitton securing the listing. There is little evidence as to how the repairs were made to the property other than that the cracks were filled and painted. No effort was made to correct the soil conditions which underlay the problem. No evidence was produced to indicate whether the corrective actions taken by Mr. Schneider, along with the Fittons, was appropriate to correct problem causing the cracks or if filling was the appropriate method of correction. Also, it was not clearly established how much and of what nature the work was accomplished by Respondent, Fitton. Whereas he indicates his participation was limited to only carrying away trash and debris, Ms. Renshaw indicates he was actively engaged in actual repair work. Whatever the actual work involvement, it is clear that he knew of the condition of the house and was familiar with the steps taken to correct the deficiencies. In May, 1985, Yvonne L. and Lorraine Renshaw, sisters, were shown the property by Diane Y. Palcelli (Booth), a salesperson employed by a different realty company. The Renshaws made an initial offer of $96,000.00, and Ms. Palcelli transmitted the offer, through Fitton, (and Twitty & Co.), to Mr. Schneider who resided out of state. A series of proposals by both sides followed and ultimately, on June 1, 1985, the parties agreed upon a sales price of $106,000.00. After the sales price had been agreed upon and the contract for sale signed, during the interim period leading up to closing, which was held in late July, 1985, the Renshaws, along with their agent and friends, visited the property on numerous occasions even going so far as to commence decorative work to fix it up to their tastes. Also during this period, Fitton, who had done some work on the repairs to the property, advised his broker, Twitty, that there had been defects in the property and asked if it was necessary to disclose this. Mr. Twitty, who himself had, at this point, not seen the property, asked if the defects had been corrected, and when told that they had been, advised Fitton it was not necessary to make any further disclosure. During the course of their repeated visits to the property, the Renshaws noted some minor cracking which they brought to Fitton's and Daly's attention. Fitton mentioned this to Twitty who suggested they have someone out to look at them. Someone was called, reportedly an engineer, who looked at the cracks and agreed to fix them. Daly indicated insurance would cover the repairs and agreed to have the cracks repaired. They were. Ms. Palcelli, (Booth), also advised the Renshaws to have the property examined by their own expert to insure it was structurally sound. The Renshaws did not do this. The sale was closed on July 23, 1985 for the $106,000.00 purchase price and both Fitton and Twitty & Co. received their respective shares of the commission. Several months after the closing, the Renshaws noticed cracks beginning to open in the walls of the house and between the pool deck and the house wall. They contacted Ms. Palcelli, (Booth) who examined the property and then tried to contact Fitton. Both Fitton and Twitty disclaimed any responsibility for the damage. Thereafter, the Renshaws filed suit against Schneider, Daly, Fitton, Twitty and Twitty & Company in Circuit Court in Pinellas County alleging one Count of fraud and one Count of grand theft. On February 22, 1991, the Court entered its Order granting Defendants', (Respondents') Motion to Dismiss the Count alleging grand theft, but denied a similar motion relating to the fraud Count. That same date, the Court entered a Final Judgement concluding that the knowing representation the property was in "excellent" condition when they knew it was not, in an anticipation of making a profit on the sale, constituted fraud. Twitty was faulted for not having inquired of Fitton, his "novice employee", more thoroughly before advising him no disclosure to the buyers was necessary. Fitton is faulted by the Court for having: ... intentionally, knowingly and fraudulently misrepresented to the [Renshaws] the high quality, excellent condition and good value of the property, intending that the [Renshaws] would rely on those representations; [they] hid the true condition of the property from the [Renshaws] and induced them to make the purchase, believing that they were purchasing a quality property worth the price being asked. The Court also concluded that the [Respondents] were obligated to disclose to the [Renshaws] the information and knowledge which they had regarding the cracking and repairs. Fitton has moved for a rehearing on the basis that the property was described as excellent on the listing sheet by Mr. Schneider, not by him. However, he was obviously aware of the condition of the property from his frequent visits to the site while it was being readied for sale. In addition, the Judgement has now been appealed to the Second District Court of Appeals by Twitty and Twitty & Company, Ltd..
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered herein providing that: The salesman's license of Respondent, Lonnie A. Fitton, be reprimanded, and he be placed on probation, under such terms and conditions as may be stipulated by the Division, for a period of two years, and The licenses of Respondents, Thomas J. Twitty, Jr. and Twitty & Co., Ltd., be reprimanded and they be placed on probation, under such terms and conditions as may be stipulated by the Division, for a period of six months. RECOMMENDED this 21st day of March, 1991, 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 21st day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1608 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. - 5. Accepted and incorporated herein. 6. Accepted and incorporated herein. 7. Accepted and incorporated herein. 8. Accepted and incorporated herein. 9. Accepted and incorporated herein. 10. Accepted and incorporated herein. 11. First, second and fourth sentences accepted and incorporated herein. Third sentence modified to reflect that Fitton concealed but Twitty was culpably negligent in failing to disclose. FOR RESPONDENT, TWITTY AND TWITTY & CO. LTD.: 1. & 2. Accepted and incorporated herein. 3. Accepted. 4. Accepted. 5. Accepted and incorporated herein. 6. Accepted. 7. Accepted and incorporated herein. 8. 9. Accepted, but Twitty's agent, Respondent, Fitton, worked on and was familiar with the condition of the property prior to sale. Accepted. FOR RESPONDENT, FITTON: 1. Accepted and incorporated herein. 2. Accepted and incorporated herein. 3. Accepted. 4. Accepted except for the assertion that the individual who viewed the cracks was an engineer. There was no proof of this. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Steven W. Johnson, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Dominic E. Amadio, Esquire 100 34th Street North, Suite 305 St. Petersburg, Florida 33713 Daniel J. Grieco, Esquire 19139 Gulf Blvd. Indian Shores, Florida 34635 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene Keller Division Director Division of Real Estate 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32801
The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint dated March 20, 1991; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility of regulating and disciplining real estate licensees. At all times material to the allegations of this case, the Respondent has been a real estate licensee having been issued salesman's license no. 0455312. In March, 1989, Respondent met with Thomas and Cheryl Bellaw regarding the purchase of real property. The Bellaws were interested in investment property which would enhance their retirement options. Respondent showed the Bellaws a 7.5 acre tract which he claimed could be subdivided into smaller lots and resold at a substantial profit. As an inducement to convince the Bellaws to make the purchase, the Respondent drew several plans to show how the tract could be divided, made resale projections to compute the buyers' estimated profits from the subdivision of the land, and gave the buyers sales comparables from other lots to justify the figures he presented. In truth, the tract could not be subdivided and was the subject of a county ordinance which prohibited its division. Respondent knew that the tract could not be subdivided but nevertheless encouraged the Bellaws to complete the purchase. Once the purchase was completed, the Bellaws listed the property for resale with the Respondent at a substantial increase. At no time prior to the purchase by the Bellaws or prior to the subsequent relisting, did the Respondent advise the Bellaws that the tract could not be subdivided. When the listing produced no offers, the Bellaws investigated and discovered that the tract they had purchased had been illegally subdivided earlier from a 10 acre parcel. Respondent admitted that the 10 acres had been owned by a married couple who, in the course of their divorce, quitclaimed part to the wife (the portion not sold to the Bellaws) and part to the husband (the portion purchased by the Bellaws), and that this subdivision was impermissible. The Bellaws then went to the county for relief. They sought after-the- fact permission to subdivide the 10 acre parcel so that their tract would be able to receive a building permit. That relief was denied. Consequently, the Bellaws have been unable to assure that a building permit can be issued for their property and are unable to use the tract for the purpose for which it was purchased. Respondent should have known of the county ordinance which prohibited the subdivision of the 10 acre tract as it had been enacted some seven to eight years prior to the transaction which is the subject of this case. A prudent real estate licensee checks governmental restrictions which might impair the marketability of a parcel.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Real Estate Commission enter a final order revoking Respondent's real estate license. DONE and ENTERED this 16th day of September, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1991. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 and 2 are accepted. Paragraph 3 is accepted but is irrelevant to the allegations of this case. Paragraphs 4 through 14 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: James H. Gillis Senior Attorney Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Paul Edward Ebbert, Jr. 1000 Abernathy Lane, #206 Apopka, Florida 32703 Paul Edward Ebbert, Jr. 770 Lake Kathryn Circle Casselberry, Florida 32307 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Darlene F. Keller, Director Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Testimony established that during late December, 1975, Land Re-Sale Service, Inc., a Florida corporation, filed application with the Commission, seeking registration as a corporate real estate broker. That application revealed that Respondent Frank Viruet was to become the Active Firm ember Broker, and Vice President of the company; that Carol Bauman was to become Secretary-Treasurer and that Lee Klein was to become President and Director of the company. Testimony reveals that Carol Bauman is the wife of the Respondent Bernard Bauman; that Lee Klein is the sister of Carol Bauman and that Jeffrey Bauman is the son of Bernard Bauman. Subsequent to the filing of the above referenced corporate application for registration, the name was changed to Noble Realty Corporation and shortly thereafter to Deed Realty, Inc., and that at each such change, new application for corporate registration was filed with the Commission. Evidence also revealed that the officers and Active Firm Member Broker remained as stated and therefore for all legal purposes, the above corporate entities are one and the same. Turning to the complaint allegations in Count One, according to the certificates of the Commission's Chairman, dated December 3, which was offered in evidence by Petitioner and admitted without objection, during the period of November 1, 1975 through the date of said certificate (December 3, 1976), which covers the material dates of the complaint herein, no registration was issued to or held by the above three named corporations. This was further confirmed by testimony of Bernard Bauman who was to have become a salesman associated with the above entities and by Frank Viruet, the broker, who was to have become the Active Firm Member Broker for the above entities. Approximately December 2, 1975, Land Re-Sales Service, Inc., entered a written lease for office premises known as Room 212, Nankin Building, which is located at 16499 N.E. 19th Avenue, North Miami Beach, covering the period January 1, through December 31, 1976. (A copy of the lease was entered into evidence by stipulation of the parties.) The unrebutted testimony of Petitioner Reagan was that he observed, during his investigation of this cause, a building directory on the ground floor entrance to the Nankin Building displaying the name Noble Realty Inc., and a similar display on the building directory on the second floor. Petitioner's witness, Peter King, representative for Southern Bell Telephone Company testified that based on records received, three phones were installed in said room 212, Nankin Building on December 27, 1975, in the name of Land Re-Sale Service, Inc. and that from January 2, 1976 through January 16, 1976, approximately 575 calls were made from the above phones during evening hours to out-of-state numbers. Bernard Bauman and Jeffrey Bauman admitted to having made phone calls to out-of-state numbers for purposes of soliciting real estate sales listings, but both were unable to recall nor did they have records to substantiate how many calls they made. Bernard Bauman testified that approximately four listings were obtained with an advance fee of $375.00 for each listing. He further testified that upon being advised by the investigator with the Commission that the operation was in violation of the licensing law, by reason that no registration had been issued to the applicant company and that all who were engaging in real estate activities for said company were in violation of the licensing law. Thereafter the premises were closed and as best as can be told, all real estate activities ceased. This was further confirmed by Petitioner Reagan. The evidence respecting Count two of the administrative complaint established as stated above that Respondents Bernard and Jeffrey H. Bauman solicited real estate listings with representations to property owners that the listings would in fact be published and disseminated to brokers nationwide. However, both Baumans admitted that their listings were never published or otherwise disseminated to brokers. According to Bernard Bauman's testimony, no monies received were ever returned. There was no evidence to show that Respondent Bernard Bauman knew at the time of soliciting that no bona fide effort would be made to sell properties so listed with Noble Realty Corporation.
Recommendation Based on the above findings and conclusions of law, it is therefore recommended that the registration of Bernard Bauman be revoked. DONE and ENTERED this 12th day of January, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Findings Of Fact Respondent, George May, at all times relevant thereto, was a licensed real estate broker-salesman, having been issued license number 0056693 by Petitioner, Department of Professional Regulation, in 1976 (Petitioner's Exhibit 1). On or about October 8, 1979, Respondent filed an application for licensure as a broker-salesman to associate himself with Lee Holliday, a registered real estate broker with offices at 6191 SW 45th Street, Davie, Florida (Petitioner's Exhibit 1). The application was signed by both May and Holliday on October 4, 1979, and received by the Department on October 8, 1979. Prior to that time, May's license had been in an inactive status for approximately eight months. May registered with Holliday with no intention of actively engaging in real estate transactions. He simply desired to keep his license active in the event other opportunities arose. May subsequently left Holliday some "two or three weeks" later. During his association with Holliday, neither May nor Holliday consummated any real estate transactions. In November, 1979, May became a salesman for Riken Realty, Inc., located at 1742 NE 163rd Street, North Miami Beach, Florida. The exact date was never disclosed. However, May was observed at Riken Realty by a Department investigator on or about November 15, 1979, and signed rental agreements on behalf of Riken shortly thereafter, which corroborate the approximate date of employment given by May. On November 13, 1979,May signed a Form 400.5 to transfer his registration to Riken Realty. This form is used to request a registration certificates for a number of categories, including "a change of broker or owner by a salesman or broker-salesman". A change of an employer by a salesman requires that both the salesman and the broker-employer execute the form. After May signed the form, he gave it the same day to Steve Mishken, the office manager. Mishken filled out a portion of the space where the broker is to sign, and then gave it to Gerald Rosen, the active broker of the firm. The date on which Mishken gave it to Rosen was not disclosed. Rosen eventually signed the form on December 11, 1979. The form itself reflects receipt by the Florida Real Estate Commission on December 11, 1979, and by the Board of Real Estate on January 11, 1980. 1/ However, the Department considers January 11, 1980, to be the official date on which the form was received. Rosen was unable to account for the four weeks that it took him to sign the form, or why it was apparently not mailed for several weeks thereafter. Mishken, who initially received the form, could not explain the reason for the delay. The standard practice followed by Riken Realty when processing a Form 400.5 was immediate execution of the form by the broker. The broker then assumed the responsibility of promptly submitting it to the Department. After becoming associated with Riken Realty, May was actively involved in both sales and rental transactions, and received compensation for his services. Riken Realty closed its offices in early 1980. At the direction of Steve Mishken, May became associated with National Home Realty, Inc., in Hollywood, Florida, in early February, 1980. 2/ The exact date was never disclosed. National's active broker was Gerald Rosen and its principal stockholder was Mishken. May claims he signed and gave a Form 400.5 to Mishken when he transferred to the firm. However, this was not corroborated by Mishken or Rosen, who testified at the hearing, and the Department has no record of any form being filed. On February 10, 1980, a Department investigator visited the offices of National Home Realty and observed May working in the capacity of a salesman. The investigator advised Rosen and Paul Katchmere, the office manager, that a transfer of registration for May would be required. Rosen was under the mistaken impression that a transfer was not needed between corporations owned and operated by the same principals. May subsequently left National two days later (February 12, 1980) to begin his own real estate firm and the form was never executed. On February 15, 1980, May executed a Form 400.5 requesting that his registration be transferred to Real Estate Merchandisers, Inc., located at 2300 West Oakland Park Boulevard, Fort Lauderdale, Florida, a firm which May owns and operates. He has continued working as its active broker since that time. The records of the Department reflect the form was received on March 24, 1980.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent George May be found guilty of violating Subsections 475.42(1)(a) and (b), Florida Statutes, and Rule 21V-6.06, Florida Administrative Code, for failing to register as an employee of National Home Realty, Inc. in February, 1980. It is further RECOMMENDED that Respondent to be given a private reprimand for the aforesaid violations. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of June, 1981. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of 1981.
Findings Of Fact In February of 1988, Petitioner took the real estate broker's examination compiled by Respondent, and otherwise complied with all applicable licensure requirements. The Petitioner received a grade of 74 on the written examination. A grade of 75 or higher is required to pass the test. Had Petitioner answered question number 62 with the answer deemed by Respondent to be correct, Petitioner's score would have been 75 and, as such, would have entitled him to licensure. Question number 62 reads as follows: The Department of Professional Regulation may withhold notification to a licensee that the licensee is being investigated IF: NOTIFICATION COULD BE DETRIMENTAL TO THE INVESTIGATION. NOTIFICATION COULD BE DETRIMENTAL TO THE LICENSEE. THE ACT UNDER INVESTIGATION IS A CRIMINAL OFFENSE. Possible answers to question number 62 were as follows: I only. II only. I and III only. I, II and III. The answer to question number 62 chosen by Petitioner was D. The Respondent determined the correct answer should have been C. The Respondent's examining board followed a standard procedure for conducting and grading the examination. Statistically, 58 per cent of candidates taking the examination and placing in percentile rankings 50 through 99, answered the question correctly. Of those candidates taking the examination and placing in the lower half (0-50 percentile), 33 per cent answered the question correctly. The results obtained to question number 62 from all applicants taking the examination revealed the question exceeded effective testing standards. Question number 62 and the appropriate answer to that question are taken directly from section 455.225(1), Florida Statutes. The purpose of the question is to determine if an applicant is knowledgeable of the law governing real estate broker licensees. The Respondent adopts the position that section 455.225(1), Florida Statutes, mandates that Respondent shall notify a licensee of any investigation of which the licensee is the subject and authorizes withholding notification to that licensee only where such notification would be detrimental to the investigation, or where the act under investigation is a criminal offense. The Petitioner takes the position that section 455.225(1), Florida Statutes, does not prohibit withholding notification of an investigation from a licensee when such notification would be detrimental to the licensee. The Petitioner bases this contention on the broad power provided the Real Estate Commission by section 475.05, Florida Statutes. The Commission has not, however, adopted any rule, regulation or bylaw supportive of Petitioner's position and the statutory mandate is clear. Further, the statute referenced by Petitioner specifically does not support an exercise of this power of the Commission if the result is a conflict with another law of the State of Florida. Section 455.225(1), Florida Statutes, states Respondent "shall" notify "any person" of an investigation of that person. Under that section, discretionary authority to refrain from such notification is allowed only where there is a potential for harm to the investigation, or the matter under investigation is a criminal act.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered confirming the grade of the Petitioner as previously determined. DONE AND RECOMMENDED this 20th day of July, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 20th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2442 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings The Petitioner submitted a document entitled summary of hearing and consisting of seven numbered paragraphs. They are treated as follows: Rejected as unnecessary. Included in findings 5, and 7. Rejected, contrary to the weight of the evidence. 4.- 6. Rejected, contrary to evidence adduced. 7. Rejected as argument. Respondent's Proposed Findings The Respondent submitted a three page document entitled "argument" and consisting of eight unnumbered paragraphs. Numbers 1-8 have been applied to those paragraphs. They are treated as follows: 1.-5. Rejected as conclusions of law. 6. Included in findings 8, 9, and 10. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Acting Director Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Phillip I. Salerno 11812 Timbers Way Boca Raton, Florida 33428 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Defendants breached an oral contract with their employer. Whether the Defendants, both of whom were registered salesmen employed by Rivas Realty, Inc., conducted themselves in such a manner that the sellers of a certain parcel of real estate suffered a loss of a substantial profit from their property. Whether the licenses of the Defendants should be revoked.
Findings Of Fact Defendants Victor Hugo Hernandez and Elisa Hernandez, husband and wife, were registered real estate salesmen employed by Rivas Realty, Inc., a corporate broker, with offices located at 2341 N.W. 7th Street, Miami, Dade County, Florida. Defendants were employed by Rivas Realty, Inc., a corporate broker, under an oral employment agreement whereby real estate transactions entered into by them or either of them as registered salesmen or personally or jointly for their own account were to be handled through said broker's office; that all details of any such real estate transaction were to be available in open files in said office; that they were to identify themselves as salesmen for Rivas Realty, Inc. On or about December 20, 1973, Defendant Victor Hugo Hernandez individually and for the benefit of himself and his wife jointly contracted to buy the residence at 526 E. 44th Street, Hialeah, Florida, from Frank J. Crawford, Jr., and Alexis Jo Crawford, his wife, for the sum of approximately $27,000. The transaction closed on or about January 3, 1974, and conveyance by warranty deed was made by the Crawford to Paul G. Block, Trustee. The property was soon resold. The Real Estate Commission contends: That the Defendants represented themselves as individuals desiring to purchase the home from the Crawfords for their son; That the Defendants had no intention of purchasing said property for the son and in fact, soon thereafter resold the property at a substantial profit to themselves; The Defendants through their misrepresentation defrauded the Crawfords of a substantial profit; They did not inform the Crawfords that they were in fact salesmen for Rivas Realty, Inc.; That the Defendants violated the oral agreement they had with the employer, Rivas Realty, Inc., when they failed to process the purchase and the resale of the Crawford property through the Rivas Realty, Inc.; That the Defendants are guilty of misrepresentation, concealment, dishonest dealing, trick, scheme or device and breach of trust in a business transaction, all in violation of Section 475.25(1)(a), Florida Statutes; That the registrations of Victor Hugo Hernandez and Elisa Hernandez should be suspended or revoked. The Defendants contend: That at the time of the sale and the purchase of the home from the Crawfords they had secured permission from the Rivas Realty, Inc. to purchase a home for their son; That the employer, Mr. Anthony Rivas, had given permission to the Defendants, as long time and effective salesmen, to purchase the property inasmuch as it was for the benefit of the son; That the son did not want the property after it was bought and therefore the property was immediately placed for sale; That the Defendants shortly after the purchase and sale of the property in question did in fact buy for their son a home in another location; That they in no way planned to trick the Crawfords into the sale of their home by not representing themselves as real estate agents; That in fact they did so represent themselves as real estate agents and placed the sign of Rivas Realty, Inc. in front of the Crawford home before the resale; That it was generally understood by the owners and among the long time employees of Rivas Realty, Inc. that they could at times buy and sale for their own personal benefit properties that members of their family might desire without processing the sale through the business office of Rivas Realty, Inc. or dividing the profit with the corporation. That they did not breach the oral contract between themselves and the employer. The Hearing Officer finds: That the Defendants, Victor Hugo Hernandez and Elisa Hernandez, bought the home of Mr. and Mrs. Crawford under circumstances which tended to deceive the purchasers but without actual misrepresentation; That there was no showing of an actual loss by the Crawfords; That the oral agreement between the Defendant salesmen and the employer, the Rivas Realty, Inc., was at times waived by the owner, Mr. Rivas or his brother, as special favors to their salesmen; That the Defendants acted under a waiver of the oral agreement between themselves and the Rivas Realty, Inc. when they purchased and resold the home of Mr. and Mrs. Crawford, or their acts were approved or condoned by the employer; That the evidence received and the testimony taken do not show that the Defendants, Victor Hugo Hernandez and Elisa Hernandez, breached the fiduciary relationship with their employer, Rivas Realty, Inc.; That the evidence received and the testimony taken do not prove the Defendants to have been guilty of misrepresentation, concealment, dishonest dealing, trick, schemes or device and breach of trust in a business transaction in violation of Section 475.25(1)(a), Florida Statutes.
Findings Of Fact At all times material to this case, the Respondent, Gloria Corsoro, has been a licensed real estate broker. She is the qualifying broker for the company known as Orange Management Corp. The Department is the state agency charged with the responsibility of regulating real estate licensees in the State of Florida. On or about July 20, 1994, the Respondent, Gloria Corsoro, entered a plea of nolo contendere to the crime of unlawful use of a notary. As a result, the Respondent was adjudicated guilty, placed on probation for a period of six months, and required to make payments and serve community service as directed by the court order. The plea and conviction stemmed from Respondent's conduct in connection with a warranty deed (the deed) which was recorded in the public record for Indian River County, Florida, on October 12, 1993. The deed conveyed a condominium unit from Leon R. Leavitt to the G. Corsoro Family Trust. The deed, notarized on October 1, 1989, purportedly bore the signatures of Leon R. Leavitt, the grantor; Mamie Cellura, a witness; Marie Copley, a witness; and Joseph Cellura, the notary before whom the document was executed. In fact, the document was not signed by Marie Copley or Leon R. Leavitt. At the time of the hearing, Mamie Cellura and Joseph Cellura were deceased. They were the parents of Marie Copley and her sister, the Respondent. At the time the deed was executed, Respondent signed Mr. Leavitt's name under a power of attorney he had reportedly given to her. Respondent further claims that Mamie Cellura signed for herself as a witness, signed for Marie Copley as a witness, and signed her husband's name with him (he had Parkinson's disease) as the notary. All this was completed, according to Respondent, Marie Copley, and Leon R. Leavitt, with everyone's full consent and knowledge. Marie Copley and Leon R. Leavitt were not present when the document was executed. Since they claim Respondent was authorized to execute the document, they are not concerned as to who signed the document but believe Mamie Cellura and Respondent signed as represented by Respondent. According to Nicholas Burczyk, the Respondent signed the document for all signatories on the instrument. Even by Respondent's account, the named parties did not execute the deed as presented on the face of the document. Respondent was originally charged with uttering a forged instrument and forgery. She chose to enter the plea as to the misdemeanor charge of unlawful use of a notary because she was "financially unable to pay to go to trial."
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, through the Florida Real Estate Commission enter a final order determining the Respondent, Gloria Corsoro violated Section 475.25(f), Florida Statutes, and imposing a reprimand together with an administrative fine in the amount of $1,000.00. DONE AND RECOMMENDED this 10th day of July, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 10th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0334 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1, 2, 3, 5, and 6 are accepted. Paragraph 4 is accepted as stated in findings of fact paragraphs 6 through 14 above; otherwise rejected as incomplete statement of fact. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. Respondent's assessment of the charges against Respondent together with the argument has been considered in the preparation of the foregoing. COPIES FURNISHED: Darlene F. Keller Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, Suite N-308 Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Daniel Villazon Senior Attorney Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Michael F. Berry MICHAEL F. BERRY, P.A. 2145-15th Avenue Vero Beach, Florida 32960
Findings Of Fact At all times material hereto, Fetters has been a licensed real estate broker in the State of Florida, trading as RONTRON Realty and Investment, with offices in Largo, Florida, and Choudhury has been a licensed real estate salesperson at RONTRON Realty. Fetters was Choudhury's broker at all times material hereto. Stanley and Mary K. Jankiewicz listed their home for $189,000 with Harvey Seybold, a licensed real estate broker, and neighbor. On January 28, 1988, Choudhury contacted Seybold and asked to see the Jankiewicz house. Seybold showed the house that same day. On January 30, 1988, Choudhury presented a contract for the sale and purchase of the home to Seybold and Jankiewicz. The purchasers, John and Gail Taylor, offered $185,000, but this offer was unacceptable to Jankiewicz because it called for him to hold a $150,000 purchase money mortgage. Jankiewicz proposed a counteroffer, which still provided for a sales price of $185,000, but only required him to hold a purchase money mortgage of $25,000. It also required the Taylors to obtain a firm financing commitment within 45 days for a first mortgage in the amount of $129,000. The Taylors accepted this counteroffer, and the transaction was scheduled to close on March 30, 1988, as proposed in Jankiewicz' counteroffer. Jankiewicz and Seybold testified that Choudhury told them, on January 30, 1988, that the Taylors had a net worth of from $2 to $3 million, and that he had a copy of their financial statement in his office, which he had reviewed. They claim that he promised to provide them with a copy of this financial statement on February 1, 1988. Jankiewicz testified that Choudhury's representation about the financial condition of the Taylors was a significant inducement for him to propose his counteroffer, and he would not have gone through wish this sale had he known on January 30, 1988, what he subsequently learned about their net worth. Choudhury denies making any representation about the Taylors' net worth. He testified that he had only met the Taylors on one occasion, and had no way of knowing their net worth since he denies having a copy of their financial statement at that time. When the Taylors' financial statement was not provided on February 1, 1988, Jankiewicz and Seybold made repeated attempts to contact Choudhury, most of which were futile. He would not return their calls. Finally, on March 7, 1988, Choudhury did send Seybold a copy of the Taylors' financial statement, and Seybold immediately forwarded it to Jankiewicz. The financial statement is dated January 31, 1988, and indicates a net worth of $238,100. Choudhury testified that he forwarded this financial statement to Seybold as soon as he received it from the Taylors, but that when he looked it over he was "shocked". Choudhury offered no credible explanation of why he would be "shocked" to see the Taylors' financial statement, unless he had expected a far higher net worth. Yet, he testified that he had no knowledge of their net worth. Based upon the demeanor of the witnesses, and after considering the testimony of Choudhury, Seybold and Jankiewicz, as well as Choudhury's unexplained testimony about being "shocked" to see the Taylors' net worth, it is found that Choudhury did represent to Jankiewicz and Seybold on January 30, 1988, that the Taylors had a net worth of from $2 to $3 million. This statement was false, but it was a material inducement which led Jankiewicz to make his counteroffer, accepting a $25,000 purchase money mortgage. The contract for sale did not provide any contingency which addressed Jankiewicz' concerns about the Taylors' net worth. He and Seybold believed Choudhury's representations, and admitted at hearing that it was an oversight on their part not to insist on a contingency in the sales contract. They simply took Choudhury's word that he had seen their financial statement, and it showed a net worth of $2 to $3 million. When he received the Taylors' financial statement in early March, 1988, Jankiewicz tried to back out of the deal, but because there was no contingency in the sales contract, and because the Taylors threatened to sue him for breach of contract if he did not close, he went through with the sale. The sale closed, as scheduled, on March 30, 1988. The Taylors had obtained a first mortgage through bank financing in early March, and have subsequently made payments to Jankiewicz under the purchase money mortgage which he holds, although on occasion they have been late with their payments. At no time did Fetters participate in the discussions which took place with Jankiewicz and Seybold concerning this sale. Choudhury made all contacts with them, presented the sales contract, and attended the closing. The Petitioner's investigator, Leo Huddleston, visited Fetters on June 28, 1988, to examine Fetters' records concerning the Jankiewicz transaction, but Fetters brought no records with him to this meeting. He claimed that Choudhury had all of these records. Subsequently, he did provide Huddleston with escrow records showing a $20,000 deposit in his escrow account, and copies of three checks from the Taylors totaling $20,000, which he claimed he received as their deposit on the Jankiewicz house, and which he stated he then deposited in his escrow account. These checks do indicate on their face that they were for a house deposit. However, Fetters was never able to produce a copy of his deposit slips or bank records which would directly establish that the Taylors' checks were in fact deposited into his escrow account. There was no indication on the face of the checks that they were deposited into his escrow account, or that he had an escrow account established for this purpose. Fetters testified at hearing, that he had lost his bank records, and presumed that a former tenant had taken them when he moved. Fetters failed to keep adequate records of his escrow account that would allow an audit of funds deposited into, and withdrawn from, such account. He could not establish that he had an escrow account on which he was signatory. He was also negligent in failing to safeguard any such records which he may have had, and could not produce complete records of his escrow account which would establish that the Taylors' deposit checks were placed in his escrow account, and remained there until they were withdrawn by a $20,000 cashier's check that was exchanged at closing. Following initial investigation of a complaint filed by Jankiewicz against Fetters and Choudhury, a probable cause panel decided not to issue an Administrative Complaint, and they were informed, in August, 1988, that this complaint file had been closed. Subsequently, however, new evidence was discovered concerning the fact that Seybold had also been present on January 30, 1988, when Choudhury met with Jankiewicz, and Seybold confirmed Jankiewicz' recollection of Choudhury's statements. Thereupon, this complaint was resubmitted to a probable cause panel, and the Administrative Complaint which is at issue in this case was filed.
Recommendation Based upon the foregoing, it is recommended that Florida Real Estate Commission enter a Final Order suspending Respondent Fetters license for a period of six months, and suspending Respondent Choudhury's license for a period of one year. DONE AND ENTERED this 17th day of July, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1989. APPENDIX The Petitioner did not timely file Proposed Findings of Fact. Respondent Choudhury did file a Memorandum of Law which contains unnumbered paragraphs under a section referred to as "Facts". This Memorandum has been considered in the preparation of this Recommended Order, but specific rulings cannot be made on the matters contained in the section labeled "Facts" since this consists largely of argument on the evidence without any citation to the record as required by Rule 22I-6.031(3), F.A.C. Rulings on the Respondent Fetters' Proposed Findings of Fact: 1-2. Adopted in Finding 1. 3. Adopted in Findings 2, 8. 4-5. Adopted in Findings 3, 4. Rejected in Finding 5, and as argument on the evidence, rather than a proposed finding of fact. Adopted and Rejected in part in Findings 10, 11. Rejected in Finding 11. Not a proposed finding of fact. COPIES FURNISHED: ARTHUR R. SHELL, ESQUIRE DIVISION OF REAL ESTATE P. O. BOX 1900 ORLANDO, FLORIDA 32802 LESLIE M. CONKLIN, ESQUIRE 2120 U.S. 19, SOUTH SUITE 210 CLEARWATER, FLORIDA 34624 RONALD P. TEEVAN, ESQUIRE 200 NORTH GARDEN AVENUE SUITE A CLEARWATER, FLORIDA 34615 DARLENE F. KELLER DIVISION DIRECTOR P. O. BOX 1900 ORLANDO, FLORIDA 32802 KENNETH EASLEY, GENERAL COUNSEL NORTHWOOD CENTRE 1940 NORTH MONROE STREET SUITE 60 TALLAHASSEE, FLORIDA 32399-0792 =================================================================
The Issue The issues in this case are whether the respondents, Dorothea L. Prisament and Warricks Real Estate , Inc., should be disciplined on charges filed in a six-count Administrative Complaint, three counts for each respondent, and alleging that the respondents: (1) were culpably negligent in allowing their escrow account to have a negative balance, in violation of Section 475.25(1)(b), Florida Statutes (1989); (2) failed to maintain trust funds in a properly maintained escrow account, in violation of Section 475.25(1)(k), Florida Statutes (1989); and (3) failed to maintain a proper office sign, in violation of F.A.C. Rule 21V-10.024 and Sections 475.25(1)(e) and 475.22, Florida Statutes (1989).
Findings Of Fact Dorothea L. Prisament and Warricks Real Estate, Inc., are now, and were at all times material hereto, licensed as real estate brokers in the State of Florida. Dorothea L. Prisament was the active real estate broker for the corporate broker, Warricks Real Estate. On or about August 16, 1989, investigator Marjorie G. May conducted an office inspection and audit of the escrow accounts of the respondents. Ms. May also reviewed the outer office of the respondents. The entrance sign did not have the name of Dorothea L. Prisament on it; however, the sign did have Warricks Real Estate correctly identified and identified as a licensed real estate broker. Ms. May advised Ms. Prisament of the fact that Ms. Prisament's name needed to be on the sign and identified as a real estate broker. Ms. Prisament had a new sign made which fully complies with the statutes and rules. There was no evidence introduced at hearing to show that the escrow account of the respondents had a shortage in any amount; directly to the contrary, both the Department of Professional Regulation investigator and Ms. Prisament agreed that there was no shortage in the account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and in light of the fact both that the respondents' violation was a very minor and technical one which was immediately corrected and that the respondents had to undergo the costs of defense of this case and suffer the mental duress of defending this case, it is recommended that the Florida Real Estate Commission enter a final order dismissing Counts I through IV of the Administrative Complaint and reprimanding the respondents for a minor and technical violation under Counts V and VI. RECOMMENDED this 20th day of July, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of July, 1990. COPIES FURNISHED: Janine A. Bamping, Esquire Department of Professional Regulation, Division of Real Estate Post Office Box 1900 400 West Robinson Street Orlando, Florida 32801 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Darlene F. Keller Director, Division of Real Estate 400 West Robinson street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
The Issue The issue is whether Respondent is guilty of obtaining his license by fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes.
Findings Of Fact At all material times, Respondent has been a licensed real estate broker, holding license number 0500228. Respondent’s licensing cycle ends on March 31 every two years. He duly renewed his broker’s license prior to its expiration on March 31, 1994. During the ensuing two-year licensing term, Respondent executed on January 1, 1996, a Request for License or Change of Status and submitted the form to Petitioner. The purpose of submitting the form was to notify Petitioner that Respondent had adopted a corporate form of doing business as a real estate broker. Section A of the form contains a series of options. Respondent selected “other” and wrote in “change to corp.” Section B contains identifying information, and Respondent completed this section. Section C is irrelevant to the change that Respondent was making, and he did not fill in this section. The instructions for Section A direct the person filing the form as follows: “If this is a renewal of your license, it must be accompanied by the required fee and sign this: I hereby affirm that I have met all statutory and rule requirements regarding education for license renewal.” Respondent signed this statement even though he was not seeking a renewal of his license. The instructions for Section B told the person filing the form how to complete Section B. But these instructions required no representations. The next form generated in this case was another renewal notice, as Respondent’s license neared the end of its term, which expired March 31, 1996. This form states: “By submitting the appropriate renewal fees to the Department . . ., a licensee acknowledges compliance with all requirements for renewal.” By check dated December 30, 1995, Respondent timely submitted his license renewal fee of $95 in response to the renewal notice. He was unaware at the time that he had not met the continuing education requirement for relicensing, which called for 14 hours of education. In reliance on the implied representation that Respondent had completed the required continuing education, Petitioner renewed Respondent’s license. Later, during a random audit, Petitioner discovered that Respondent had not completed the necessary courses and commenced this proceeding. Respondent was cooperative during the audit. Upon discovering that he had not complied with the continuing education requirement, he promptly undertook the necessary coursework, which he completed by August 6, 1996.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the administrative complaint against Respondent. ENTERED in Tallahassee, Florida, on June 4, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on June 4, 1997. COPIES FURNISHED: Attorney Andrea D. Perkins Department of Business and Professional Regulation Division of Real Estate Legal Section 400 West Robinson Street Suite N-308A Orlando, Florida 32801 Frederick H. Wilsen Frederick H. Wilsen & Associates, P.A. Law Office of Gillis & Wilsen 1415 East Robinson Street Suite B Orlando, Florida 32801 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
