The Issue Whether the Respondents committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to regulate the practice of real estate, pursuant to the laws of the State of Florida. At all times pertinent to this proceeding, Respondent, Lynton Oliver Thomas, was a licensed real estate broker, having been issued license number 0504596 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent Thomas was as a broker-salesperson at Pagliari Realty, Inc., 323 Northeast 167 Street, North Miami Beach, Florida 33162. At all times pertinent to this proceeding, Respondent, L T Express Realty Corp., was a corporation registered as a Florida real estate broker, having been issued license number 0273473 in accordance with Chapter 475, Florida Statutes. At all times pertinent to this proceeding, Respondent Thomas was licensed and operating as qualifying broker and officer of Respondent L T Express Realty Corp. The office for this corporate entity was located at 2124 Northeast 123 Street, North Miami Beach, Florida. There was no evidence that Respondent Thomas operated his corporate entity from any other office. On May 7, 1995, Respondent Thomas, a licensed real estate broker, d/b/a L T Express Realty Corp., negotiated a contract for the sale of a house between Bruce and Ann McCormick (as sellers) and Marie S. Saintel and Carita Luc (as buyers). The buyers gave Respondent Thomas an earnest money deposit in the amount of $5,528.00. The transaction failed to close. The sellers, through their agent, attempted to make a demand upon Respondent Thomas for delivery of the earnest money deposit. The sellers' agent was unable to serve the demand on the Respondents because the Respondents had closed their offices and could not be located. Respondents had, or should have had, a good faith doubt as to the proper way to disburse the escrowed funds. Respondent Thomas, without authorization from the sellers, returned $3,000.00 of the original $5,528.00 deposit to the buyers. The balance of the earnest money deposit, in the amount of $2,528.00, has not been recovered from the Respondents. Rule 61J2-10.032(1), Florida Administrative Code, provides the procedure real estate brokers are required to follow when competing demands are made for funds that have been received in escrow or when a broker has a good faith doubt as to how escrowed funds should be disbursed. At no time did Respondents attempt to invoke those procedures. Kenneth G. Rehm, Petitioner's investigator, visited Respondent L T Express Realty Corp. and discovered that Respondent Thomas had abandoned his registered office. Respondent Thomas failed to notify Petitioner that he closed his real estate office at 2124 Northeast 123 Street, North Miami Beach, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered that finds Respondents guilty of the violations alleged in Counts I-VIII of the Administrative Complaint. As a penalty for these violations, the Final Order should revoke all licenses issued by Petitioner to Respondents. DONE AND ENTERED this 18th day of November, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Mr. Lynton Oliver Thomas L T Express Realty Corp. 10810 Northeast Tenth Place Miami, Florida 33161 CLAUDE B. ARRINGTON 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 this 18th day of November, 1997 Henry M. Solares, Division Director Division of Real Estate Post Office Box 1900 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 The issue presented for decision herein is whether or not Respondent's real estate salesman's license should be disciplined because he engaged in acts and/or conduct amounting to fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust and for failure to account and deliver monies entrusted to him while acting as a salesman in violation of Section 475.25(1)(b) and (d), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received including a review of the entire record compiled herein, I hereby make the following relevant factual findings. During times material herein, Respondent was, and is, a licensed real estate salesman in Florida and has been issued license number 0128100. (Petitioner's Exhibit 1) Augustin Leon Padron is a resident of Caracas, Venezuela and is a part- time resident of Miami, Florida. During 1978, Leon was interested in purchasing property in the Miami area so he contacted a distant cousin, the Respondent, to help in the acquisition and management of any property be purchased. On November 9, 1978, Leon executed a power of attorney appointing the Respondent as his attorney-in-fact in regard to the acquisition and management of properties that Leon may purchase. (Petitioner's Exhibit 5) On November 17, 1978, Leon wired to the Pespondent $20,000 to be held for the acquisition of property by Leon. (Petitioner's Exhibit 6) On August 31, 1979, Leon, through the assistance of Respondent, purchased a duplex located at 43-45 NW 44 Avenue, Miami, Florida. Of the $20,000 sent to Respondent by Leon, $17,194.35 was used for the purchase of the duplex, leaving a balance of $2,805.65. (Petitioner's Exhibits 4 and 6) The balance of $2,805.65 was never accounted for by Respondent or delivered to Leon. Pursuant to the power of attorney, Respondent assumed the duties of manager of the duplex for Leon, which duties included the collection of rent, making repairs and the payment of the monthly mortgage to Atlantic Federal Savings and Loan Association in Ft. Lauderdale, Florida. On or about April 1, 1981, Leon gave a $10,000 check to the Respondent for the purpose of making certain repairs and additions to the duplex. (Petitioner's Exhibit 7) Respondent never made repairs or additions as requested and has failed to account for or deliver, to the present time, any of the $10,000, although demands have been made by Leon for the return of the money. On or about May 24, 1981, Leon issued two checks, each in the amount of $10,000. One check was issued to Arango and Galarraga, a law firm, as a deposit towards the purchase of the Kasbah Bar. The second check was issued to the Respondent to he used as a deposit on the purchase of property in Kendall. (Petitioner's Exhibit 8) Both of the above-referred transactions bailed to materialize. On July 7, 1981, the law firm of Arango and Galarraga issued a check payable to Leon in the amount of $10,000 representing a return of the deposit. (Petitioner's Exhibit 9) This check was tendered to the Respondent. Respondent took this check plus the $10,000 deposit as to the Kendall property and had a $20,000 certified check drawn and made payable to Leon. (Petitioner's Exhibit 10) On November 19, 1981, at Leon's request, Respondent issued a check to Leon in the amount of $10,000 representing a part payment of monies owed to Leon by Respondent. (Petitioner's Exhibit 11) Leon attempted to cash this check hut was told that there were insufficient funds in the Respondent's bank account to cover such an amount. (Petitioner's Exhibit 12) Leon has made numerous demands upon Respondent for the payment of the $10,000 but Respondent has failed to pay over to Leon the $10,000 or to make good on the check he issued. During 1980 and 1981, Respondent failed to make at least five (5) mortgage payments causing the mortgage loan on the duplex, referred to above, with Atlantic Federal Savings and Loan Association to become delinquent and foreclosure proceedings were instituted. (Petitioner's Exhibit 3) The evidence is undisputed that Atlantic Federal notified Respondent on at least two occasions that the loan was delinquent and, if not brought current, foreclosure proceedings would result. (Petitioner's Exhibits 15, 16, 17, and Respondent's Exhibit 1) Respondent failed to advise of the nonpayment of the mortgage and the impending foreclosure. Additionally, at no time did Respondent advise Leon that be did not have sufficient funds to make the mortgage payment as scheduled. On November 19, 1981, Leon discovered through the public records of Dade County and Atlantic Federal, that his duplex was about to be foreclosed. Leon brought the mortgage payments current and paid the attorneys fees and costs involved amounting to $5,281.47. (Petitioner's Exhibit 13) Based on the above-referred events, Leon revoked the Respondent's power of attorney effective that day, November 19, 1981. (Petitioner's Exhibit 14) Subsequent to November 19, 1981, Leon attempted to work out arrangements whereby Respondent would repay to Leon all monies owed by Respondent to Leon. These attempts failed and Leon filed suit against Respondent in Dade County Circuit Court for $26,065. On July 24, 1992, Leon secured a final judgment against Respondent for the amount requested, i.e., $26,065 plus interest and costs. (Petitioner's Exhibit 2) To this day, Respondent has failed and refused to satisfy the judgment and Leon has been unsuccessful in his attempted collection on that judgment. Respondent contends that the $10,000 check that gas issued him by Leon was for the payment of services performed on behalf of the Respondent. Evidence in that regard reveals that Respondent was not charging Leon a commission on any real estate transactions. A review of Respondent's testimony herein reveals that in addition to the acquisition and management of the duplex referred to herein which is located at 43-45 NW 44 Avenue in Miami, Respondent only picked up and forwarded goods and merchandise to Respondent in Caracas, Venezuela which had either been purchased by or shipped to Respondent from New York and other places. Apart from the time involved in the reshipping of those goods and merchandise, Respondent only paid nominal shipping charges. It is true that Respondent attempted to negotiate for the sale and purchase of the Kasbah Bar for Leon; however, his efforts in that regard were unsuccessful. Based on all of the evidence herein, including the testimony of Leon and the documentary evidence received, Respondent's contention that Leon owed him in excess of $10,000 is not credible and is rejected. This is especially so in view of the fact that Respondent issued a check in the amount of $10,000 to Leon which was returned for insufficient funds. For all these reasons, Respondent's testimony is incredible and is rejected in those instances wherein it differs from the version offered by the deposition testimony of Augustin Leon Padron.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondent, Ignacio Dulzaides', license as a real estate salesman (number 0128100) be revoked. DONE and ORDER of this 11th day March, 1985, in Tallahassee, Florida. JAMES E. BRADWELL 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 11th day of March, 1985.
Findings Of Fact The Respondent, Shirley A. Cramer, is a licensed real estate broker in the State of Florida. Her license number is 0460613. On or about June 9, 1990, the Respondent entered into a six-month residential lease in Clearwater, Florida. She entered into the lease on her own account. She was not acting as a real estate broker. The Respondent breached the lease, and the landlord sued in civil court for damages and recovered a judgment in the amount of $9,740.29. The Respondent has not paid the judgment, or any part of it. (The Respondent made an offer to settle the judgment for less than the full amount, but the landlord rejected the settlement offer.) The landlord has not been able to collect any money on the judgment. A deposition in aid of execution has been taken, but the landlord has not levied on the judgment. Not long after entering into the lease, the Respondent advertised it for sublease. The advertisement was answered on or about June 29, 1990, by Thomas E. Maloney. In response to the ad, Maloney went to see the Respondent at her office. (The evidence was not clear whether it was a real estate office.) There, she asked for a partial rental deposit in the amount of $1,000, with another $500 due at a later date. The Respondent told Maloney that she was a Florida licensed real estate broker and assured him that his deposit would be safe with her. The Respondent later contacted Maloney and told him that his credit references did not check out and that she was not going further with the sublease arrangement. When Maloney asked for his deposit back, she told him that she would return it to him as soon as she could raise the money. The Respondent never returned any of the deposit to Maloney, and he sued her in civil court to recover the $1,000. The case was tried, and a judgment was entered in Maloney's favor but only in the amount of $500. The evidence was not clear why Maloney was not awarded the full $1,000. He testified that, when he responded to the ad for the sublease, he learned that there already was a woman living there who was supposed to have moved out but did not. The Respondent suggested to Maloney that the woman could sleep on the couch. It is not clear from the evidence whether Maloney agreed to this arrangement. He testified only: "I says, you know --- It was just a stupid move on my part so -- and she is not going to pay me." It may be that the circumstances of the existence of the other tenant, and the possibility that Maloney initially agreed to the arrangement, had something to do with the amount of the judgment Maloney was able to recover. The Respondent has not paid Maloney any money on the judgment he recovered against her. Maloney has decided not to spend any more of his own money trying to recover on the judgment. On or about September 28, 1991, the Treasurer of the State of Florida, acting in his capacity as Insurance Commissioner, entered a Final Order suspending, for one year, all insurance licenses and eligibility for licensure held by the Respondent. The Final Order was based on findings that the Respondent had failed either to secure insurance after receipt of insurance premiums from two customers, or to account and deliver the insurance premiums she had collected from them. In one case, the evidence proved that the Respondent was "professionally responsible" for the misconduct of someone acting as her employee, and was personally responsible only for having a refund check dishonored for insufficient funds. In the other case, the Respondent was personally responsible for the entirety of the transaction, and it was found: "If not outright fraud and misrepresentation, Respondent's conduct constitutes, at best, gross negligence and incompetence " On or about August 9, 1991, the Treasurer of the State of Florida, acting in his capacity as Insurance Commissioner, filed an Administrative Complaint against the Respondent alleging that she engaged in insurance activities which required a license while her licenses were suspended and that she misappropriated, unlawfully withheld, or converted fiduciary funds. On or about August 20, 1992, the Treasurer of the State of Florida, acting in his capacity as Insurance Commissioner, entered another Final Order requiring that the Respondent pay a $500 administrative fine and placing the Respondent's insurance licenses on probation for two years. This Final Order was based on findings: (1) that, on November 28, 1990, less than two months after her insurance licenses were suspended for a year, but while she was "under the impression" that she could continue to sell insurance while the suspension was on appeal (although the suspension never was stayed pending appeal), the Respondent was selling worker compensation insurance; and (2) that she collected a $3,000 premium from a customer, did not put the money into a trust account, failed to place the coverage, withdrew the money from the account and used it for her own benefit on two occasions (replacing it after the first time), and failed to return the premium to the customer until March 8, 1991. The Respondent, through counsel, asserted that the Respondent has paid the fine referred to in the preceding Finding, but there was no evidence in the record to support that claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order: (1) finding the Respondent guilty of violating Section 475.25(1)(b) and (d)1., Fla. Stat. (1991); (2) requiring her to immediately (in any event, not more that 30 days after entry of the Final Order) return to Thomas E. Maloney his $500 and to provide the Commission with evidence of payment; (3) requiring her to pay a $1,000 administrative fine within 30 days after entry of the Final Order; (4) requiring her to successfully complete 60 hours of post-licensure education for brokers, including a 30-hour broker management course, and to provide evidence of completion to the Commission; and (5) suspending her real estate broker license for five years, subject to being reduced to a one-year suspension upon evidence of compliance with (2), (3), and (4), above. RECOMMENDED this 31st day of March, 1993, 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 31st day of March, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3322 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the Department's proposed findings of fact (the Respondent not having filed any): 1.-4. Accepted and incorporated to the extent not subordinate or unnecessary. 5. Rejected in part as not proven. (Maloney did not testify that he was not told about the woman, and indicated that he asked for his deposit back after the Respondent told him that his credit references did not "check out.") 6.-10. Accepted and incorporated to the extent not subordinate or unnecessary. 11. The date of the Final Order was August 20, 1992, not 1991. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: James H. Gillis, Esquire Senior Attorney Department of Professional Regulation, Division of Real Estate Legal Section - Suite N 308 Hurston Building North Tower 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1772 Peter C. Clement, Esquire 35084 U.S. 19 North Palm Harbor, Florida 34684 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented for decision herein is whether or not the Respondent, Frederick L. Lundeen, is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction by misrepresenting that money he borrowed from a one Julie Couch would be used for the purchase of a lot but, instead, he utilized the money in connection with the purchase of a house for use by his family and for payment of other vacation and travel expenses and refuses to repay the loan, in a manner violative of Section 475.25(1)(b), Florida Statutes.3
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent, Frederick L. Lundeen, is a licensed real estate salesman and holds license number 0329068. On or about July 13, 1984, Respondent solicited and obtained $3,500 cash from Julie S. Couch (Couch) for the stated purpose of assisting Respondent in purchasing a lot on behalf of Keith and Beverly Rayburn, friends of the Couches. In connection therewith, Respondent executed and delivered to Couch a mortgage note dated July 13, 1984, to secure the $3,500 loan via certain real property owned by Respondent.4 Pursuant to the terms of the note executed by Respondent and given to Mrs. Couch, Respondent was to repay Couch the principal of $3,500 plus $1,000 interest due on or before July 27, 1984. On July 30, 1984, Respondent attempted to repay part of the loan via check dated July 30, 1984 drawn in the amount of $1,000. Respondent's check was returned unpaid by the Drawers Bank with the notification "insufficient funds." (Petitioner's Exhibits 3 and 4) Thereafter, Respondent advised Mrs. Couch that the money was used to pay for his moving, vacation and other relocation costs for his family. Keith Rayburn attempted to buy property from the Respondent which was owned by Southern Standards Corporation. At no time during the attempted purchase by Keith Rayburn did Respondent offer to loan him money to purchase a lot from Southern Standards Corporation. Respondent executed and drafted the terms of the note which was given to Julie Couch which memorialized the loan from Mrs. Couch to Respondent. In this regard, Respondent contends that Julie Couch's ex-husband suggested the terms and the rate of interest which he inserted into the note which memorialized the loan from Julie Couch. On the other hand, Julie Couch testified that it was Respondent who suggested the terms and the interest which he provided with the executed note given her. Based on all of the evidence introduced herein including the fact that Respondent misrepresented the purpose for which the money would be utilized, and his failure to call Gary Couch as a witness to substantiate his claim that it was he, Gary Couch, who suggested the terms under which the loan would be made, the testimony of Julie Couch in this regard is credited.5 Respondent has repaid approximately $1,250 of the $3,500 loan from Julie Couch. Respondent, based on advice of his counsel, refuses to repay any further amounts on this loan contending that the interest rates were usurious and, further, that the State, in the person of Petitioner, is attempting to use its "strongarm tactics" to exact money from Respondent which is a usurious transaction. Respondent also contends that because the interest rate charged by Mrs. Couch was in excess of 45 percent per annum, Mrs. Couch committed a third degree felony. As previously stated, the weight of the evidence reveals that it was Respondent who drafted the note and provided the terms for repayment. It is also clear that Respondent misrepresented to Mrs. Couch the purpose for which he would utilize the money that he borrowed from her. It is therefore concluded that by such acts Respondent engaged in acts of misrepresentation, false pretenses, trick and dishonest dealing in a business transaction.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED: That the license of Respondent, Frederick L. Lundeen, be suspended for a period of one (1) year and that he be fined $1,000. RECOMMENDED this 21st day of October, 1985, in Tallahassee, Florida.6 JAMES E. BRADWELL , 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 21st day of October 1985.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility, and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Paul F. Savich is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0077390 in accordance with Chapter 475, Florida Statutes. Respondent, Ernest M. Haefele, is a licensed real estate broker, having been issued license number 0517821 in accordance with Chapter 475, Florida Statutes. On October 1, 1984, the Respondents, purchasers in their individual capacities, entered into a contract for deed to a tract at the Tropical Acres Subdivision, with Tropical Sites, Inc., and Angie S. Crosby and Eugene T. Crosby, at a sales price of $9,046.50. Said amount to be paid at the rate of $90 per month until paid. Pursuant to the agreement, the Respondents agreed not to assign the agreement without the permission of Tropical Sites, Inc. A closing was held on May 8, 1990, and the Respondents transferred possession of the tract by assignment of contract to Leroy H. and Charlotte Beard. A mobile home on the real property was part of the purchase price for a total sales price of $39,000.00 The agreement called for a down payment of $2,000 to the Respondent Savich. The Beards also signed a mortgage note in favor of the Respondents Savich and Haffele, for $37,000. The note was payable at the rate of $373.15 per month. Upon payment in full, Respondents were obligated to deliver a good and sufficient deed to the property to the purchasers. At the closing, Respondent Haefele was not present. The Beards received two documents at closing, a contract for sale and one other document, but did not receive a copy of the original agreement for deed, a disclosure statement, or a title to the trailer on the tract. In addition, Respondent Savich did not seek permission of Tropical Sites, Inc., prior to the closing. Prior to the closing, the Beards moved onto the property, and subsequently began making monthly payments of $373.15 to Respondent Savich. The Beards had purchased two or three pieces of property in the past, but had always gone through a bank. In relation to this agreement, they understood the nature of the transaction at the time of the closing. In early 1991, Mr. Beard made a telephone inquiry to the County property appraiser's office as to the status of the property for homestead exemption purposes. He was advised that Tropical Sites, Inc. was the current owner of the tract, and that he was not eligible for homestead exemption. The Beards did not apply for homestead exemption at the appraiser's office. In August 1991, the Beards stopped making payments to the Respondents on the advice of their attorney, but continued to reside on the premises until December 1991. In November 1991, an attorney acting on behalf of the Beards made a demand upon Respondent Paul F. Savich for the return of the $2,000.00 deposit. The Respondents did not return the $2,000.00 deposit or otherwise pay the money claimed by the Beards. In his dealings with the Beards, Respondent Savich did not withhold information, lie or mislead the purchasers. They simply were unhappy with the agreement, and decided to get out of it when they recognized that they would not receive title to the mobile home and property until the note was paid in full. In early 1992, the Beards quitclaimed their interest to the property to Respondent Savich's former wife, and they were released from their obligations under the note.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Counts I and II of the Administrative Complaint filed against Respondents Paul F. Savich and Earnest M. Haefele be DISMISSED. DONE AND ENTERED this 30th day of November, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 30th day of November, 1992. APPENDIX 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 of fact: Adopted in substance: paragraphs 1,2,3,4,5,6,7(in part),8,9(in part)10,11,12,13 Rejected as against the greater weight of evidence: paragraphs 7(in part: the $2,000 was a down payment, not an earnest money deposit), 9(in part: the Beards moved on to the property prior to closing. Respondent's proposed findings of fact: Respondent submitted a proposed order with unnumbered paragraphs which partially recounted the testimony of several of the witnesses and combined facts and conclusions of law. Therefore, a separate ruling on Respondent's proposals are not possible. COPIES FURNISHED: Steven W. Johnson, Esquire Senior Attorney DPR - Division of Real Estate 400 W. Robinson Street #N-308 Orlando, FL 32801-1772 J. Stanford Lifsey, Esquire 101 E. Kennedy Blvd., Ste. 1465 Tampa, Florida 33602 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750
Findings Of Fact Respondent Santaniello holds real estate broker license number 0186475, and was so licensed at all times relevant to this proceeding. Santaniello is the active broker for Respondent, Sunair Realty Corporation, which holds license number 0213030. Mr. Don M. and Mrs. Agnes C. Long own two lots in Port Charlotte which they purchased as investments. By letter dated June 8, 1981, Respondents forwarded a "Deposit Receipt and Contract for Sale and Purchase" on each of these lots to the Longs. The documents established that Anni Czapliski was the buyer at a purchase price of $1200 per lot. Respondent Sunair Realty Corporation was to receive the greater of $120 or ten percent of the felling price for "professional services." The letter and documents were signed by Respondent Santaniello. Anni Czapliski was Bernard Santaniello's mother-in-law at the time of the proposed sale. This relationship was not disclosed by Respondents and was not known to the Longs at the time they were invited to contract with Respondents for sale of the lots. The Longs rejected the proposed arrangement for reasons not-relevant here.
Recommendation From the foregoing findings of fact and conclusions of law it is RECOMMENDED that Petitioner enter a Final Order finding Respondents guilty of violating Subsection 475.25(1)(b), Florida Statutes (1979), and fining each $500. DONE and ENTERED this 16th day of April, 1982, in Tallahassee, Florida. COPIES FURNISHED: Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert J. Norton, Esquire Suite 408 First National Bank Building Punta Gorda, Florida 33950 Mr. C.B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801 Frederick Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 R.T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April.
Findings Of Fact At all times relevant hereto Frank LaRocca, Respondent, was the holder of Real Estate Broker License Nos. 0050488, 0236407 and 0170796 issued by the Florida Real Estate Commission. On or about July 12, 1989, the Respondent, in the United States District Court, Middle District of Florida, upon a verdict of guilty rendered by a jury, was found guilty of five counts of conspiracy to commit bank fraud, a felony. On or about July 12, 1989, Respondent was sentenced to imprisonment for four years. On or about August 1, 1989, the United States District Court Judge ordered a stay of the judgment against Respondent pending completion of Respondent's appeal. Frank LaRocca was a vice-president of the Central Bank in Tampa, Florida, when he retired in May 1984 after working at this bank for 31 years. During this period, he enjoyed a good reputation in the community. Upon his retirement from the bank, he became an active real estate broker principally investing in real estate. The transactions which formed the bases for his conviction in federal court involved bank loans on condominiums he and three other partners purchased. These bank loans had all been repaid at the time of Respondent's trial but one, which had been refinanced by the bank.
Recommendation Taking all these factors into consideration, it is recommended that the licenses of Frank LaRocca as a real estate broker be revoked, but the revocation be stayed pending completion of his appeal to the court of appeals or two years whichever first occurs. At that time, depending upon the action of the court of appeals, his license be revoked or these proceedings dismissed. ENTERED this 7th day of February, 1990, in Tallahassee, Florida. K. N. AYERS 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 7th day of February, 1990. COPIES FURNISHED: Steven W. Johnson, Esquire Kenneth E. Easley Division of Real Estate General Counsel 400 W. Robinson Street Department of Professional Orlando, FL 32801-1772 Regulation 1940 N. Monroe Street Frank LaRocca Suite 60 Tallahassee, Florida 32399-0792 4814 River Boulevard Tampa, FL 33603 Darlene F. Keller Division Director Division of Real Estate 400 W. Robinson Street Post Office Box 1900 Orlando, FL 32801
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
Findings Of Fact The Respondent, John L. Nuccitelli, is a licensed real estate broker, having been issued License Number 0064764, and he was so licensed at all times material to the issue in this proceeding. On August 20, 1979, an arrest warrant was issued in Lancaster County, South Carolina, directing that the Respondent be arrested on the charge of possession of marijuana with intent to distribute, in that he flew into the Lancaster County Airport in a Douglas DC4 four engine aircraft with approximately 131 bales of marijuana. The Respondent was subsequently indicted for this offense, and on December 4, 1979, he was found guilty in the Court of General Sessions in and for Lancaster County, South Carolina, of the crime as charged. Thereafter, the Respondent was sentenced to imprisonment for a term of five years, and a fine of $5,000, with the provision that the prison term would be reduced to probation for five years upon payment of the $5,000 fine. On July 29, 1982, the Respondent having paid the fine imposed and having fulfilled the conditions of his probation, the Court entered its Order relieving the Respondent from the sentence previously imposed, and discharging him from further probation. The Respondent had not been involved with the law prior to the incident in question, and has not been so involved since this incident. He realizes that he made a serious mistake, one which has adversely affected both himself and his family. He is the sole support of his wife and five children, and he has only done work in the real estate field since leaving the Air Force. The Respondent and his wife have been married eight years. They have two children of their own, and three children by a prior marriage. The Respondent is a caring husband and father. He is trusted by those persons in the community who know him.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that License No. 0064764 held by the Respondent, John L. Nuccitelli, be REVOKED. THIS RECOMMENDED ORDER entered on this 1st day of November, 1982. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1982. COPIES FURNISHED: John L. Huskins, Esquire Department of Professional Regulation - Legal Section Post Office Box 1900 Orlando, Florida 32802 Richard J.R. Parkinson, Esquire 603 East Central Boulevard Orlando, Florida 32801 William M. Furlow, Esquire Department of Professional Regulation - Legal Section Post Office Box 1900 Orlando, Florida 32802 Carlos B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Respondent A. G. Ennis Realty, Inc. is a corporate real estate broker having been issued license number 0133016. The Respondent Thomas E. Ennis is the licensed real estate broker of record for A. G. Ennis Realty, Inc., and he holds broker's license number 0025105. The Respondent Marshall J. Hungerford is a licensed real estate salesman who has been issued license number 0042181. The Respondent Mildred B. Hardin is a licensed real estate salesman holding license number 0130139. In February, 1980, the Respondent Mildred Hardin commenced negotiations with Henry Roehr for the purchase of a lot on which he wished to build a condominium. During these negotiations, the Respondent Marshall Hungerford had deposits from ten parties for units in a condominium to be constructed. These parties wanted to live together, but they did not want to go into the particular location where the condominium was to be built because it was across the street from a public boat ramp. Negotiations on this first lot began to lag, because the owners were in Europe. The Respondent Mildred Hardin suggested that Henry Roehr purchase another lot for his proposed condominium. By letter dated March 18, 1980, Mildred Hardin forwarded a proposed contract for the purchase of Lot 35, Block 357, Unit II Replat, Marco Beach Subdivision. In this letter, the Respondent Mildred Hardin reminded Henry Roehr to keep her informed of what was happening so that Marshall Hungerford could tell his prospective buyers something. The terms of the contract for the purchase of Lot 35, generally, called for Henry Roehr to deposit $38,000 as earnest money against a selling price of $360,000. Mr. Roehr made the required deposit by check to the Respondent A.G. Ennis Realty, Inc., to be held in escrow. After Henry Roehr received assurances from the Respondent Mildred Hardin that the ten persons who had given deposit checks to Marshall Hungerford would purchase condominium units on Lot 35, Henry Roehr by letter dated April 7, 1980, authorized the Respondent Mildred Hardin to release to the seller the signed contract and check for the purchase of Lot 35. In this letter he stated that the only reason he was purchasing the lot was because of the representations that had been made to him that Marshall Hungerford had ten firm purchasers for condominium units. Before this transaction closed, the Respondent Marshall Hungerford accompanied Henry Roehr to two banking institutions for the purpose of obtaining a construction loan for the condominium units. During these visits, the Respondent Marshall Hungerford represented to the banking institutions that he had ten firm purchasers for units in the proposed condominium. The transaction closed on July 13, 1980. When Henry Roehr began to request more information about the prospective buyers of condominium units, the Respondent Marshall J. Hungerford, by letter dated July 29, 1980, forwarded to Henry Roehr the names and addresses of ten individuals who were represented to "have deposited checks with us and have expressed a desire to purchase a condominium, as proposed for the above reference project". In this letter he further stated, "its my personal opinion knowing all of these people that they are certified buyers and are interested and capable of entering into a purchase contract". When the Respondents presented no contracts for the purchase of condominium units from any of the people who were represented to be buyers, Henry Roehr suspected that he had been deceived, and tried to sell some of the condominium units himself. However, when the combined efforts of Henry Roehr and the Respondents failed to pre-sell enough units to warrant construction of a condominium, the plan to build was abandoned. The representations made by the Respondents, Marshall Hungerford and Mildred Hardin, that they had deposits from ten buyers for condominiums were false. These representations were made while they were salesmen employed by the Respondents, A.G. Ennis Realty, Inc., and the broker for A.G. Ennis Realty, Inc., Thomas Ennis. Thomas Ennis was aware of the transaction and participated in it as a broker, and collected a commission on it. Henry Roehr purchased Lot 35 in reliance upon these false representations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the licenses of the Respondents, Thomas E. Ennis, Marshall J. Hungerford, Mildred B. Hardin, and A.G. Ennis Realty, Inc., be revoked. THIS RECOMMENDED ORDER ENTERED this 6th day of May, 1983, in Tallahassee, Florida. William B. Thomas Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1983. COPIES FURNISHED: Fred Langford, Esquire Post Office Box 1900 Orlando, Florida 32802 Thomas E. Ennis A.G. Ennis Realty, Inc. 821 South Barfield Drive Marco Island, Florida 33937 Marshall J. Hungerford Post Office Box 432 Marco Island, Florida 33937 Mildred B. Hardin Post Office Box 121 Georgetown, Florida 32039 William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802 Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
