Findings Of Fact Respondent holds real estate broker license no. 0186475, and was so licensed at all times relevant to this proceeding. However, he did not act in his licensed capacity in any of the transactions discussed herein. Respondent was involved in a corporate business venture with Donald M. and Darlene Pifalo. He believed the Pifalos had improperly diverted funds from the corporation and filed suit accordingly. In December, 1980, while this suit was pending, Respondent filed a notice of lis pendens against various properties owned by the Pifalos. This action encumbered property in which the Pifalos' equity greatly exceeded Respondent's alleged loss in the business venture. There was no evidence that the Pifalos were planning to leave the jurisdiction or would be unable to make any court ordered restitution. Further, the encumbered property was not at issue in this litigation. Finally, Respondent filed the notice of lis pendens on his own volition and not on the advice of counsel. The notice was subsequently dismissed.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of violating Subsections 475.25(1)(a) and 475.42(1)(j), Florida Statutes (1979), and fining Respondent $500. DONE and ENTERED this 16th day of April, 1982 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1982.
Findings Of Fact Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as facts: The Respondent John J. Piccione, is a licensed real estate broker, having been issued license No. DK006911. The Respondent John J. Piccione, Inc., is a corporate real estate broker, having been issued license No. CW0069127. The Respondent Theresa M. Harris, is a licensed real estate salesperson having been issued license No. FL0331486. At all times material to the issues in the Administrative Complaint, the Respondent Theresa M. Harris was a licensed salesperson with the Respondent John J. Piccione Real Estate, Inc., under the brokerage license of the Respondent John J. Piccione. Theresa M. Harris was the listing and selling salesperson in connection with a real estate transaction between Wilbur J. Hamilton, Jr., as seller, and Mr. and Mrs. James Smith, as buyers. This transaction was closed on December 16, 1980, in Ocala, Florida. The closing was held in the offices of American Mortgage Funding Corporation, and was conducted by Thomas G. Sawaya, Esquire, as Closing Attorney. Present at the closing were the seller, Mr. Hamilton, the buyers, Mr. and Mrs. Smith, the Respondent, Theresa M. Harris, and Charles DeMenzes, President of American Mortgage Funding Corporation. Prior to the time the Contract for Sale was executed by the seller and the buyers, the Respondent Harris was informed by a party named Mr. Alsobrook that he claimed an interest in the proceeds from the sale on the subject property. The seller acknowledged that Mr. Alsobrook was entitled to a share of the proceeds. After the contract was signed, but before closing, the Respondent Harris was contacted on two more occasions by Mr. Alsobrook concerning his interest in the proceeds of the sale. On December 15, 1980, before the closing occurred, a Civil Complaint was filed against the seller in the Circuit Court of Marion County by Mr. Alsobrook regarding Mr. Alsobrook's interest in the property and the proceeds. In connection with this lawsuit a Lis Pendens was delivered to the Office of the Clerk of the Circuit Court on December 15, 1980, but was not filed in the Official Records Book of Marion County until December 17, 1980, in O.R. Book 1046, page 116, after the Deed from Mr. Hamilton to Mr. and Mrs. Smith had been recorded in O.R. Book 1046, page 73. On December 15, 1980, the day before, the closing, Robert Duggan, who is Mr. Alsobrook's attorney had a telephone conversation with the Respondent Harris, in which he informed her that a lawsuit had been filed concerning Mr. Alsobrook's interest in the proceeds of the sale, and that a Lis Pendens had been or was going to be filed against the property. This attorney requested that the closing be delayed until the dispute concerning the property could be resolved. On December 16, 1980, before the closing, the Respondent Harris conveyed to the Respondent Piccione, her broker, the contents of her conversation with Mr. Alsobrook's attorney. The Respondent Harris was instructed by the Respondent Piccione to attend the closing and not to mention either the call from Attorney Duggan, or the pending lawsuit, or the Lis Pendens, unless someone else brought these matters up. At no time during the closing or prior to the closing did the Respondent Harris make known to the buyers, the lender, or the closing Attorney, the facts known to her regarding the call from Attorney Duggan, the pending lawsuit, or that a Lis Pendens had been or would be filed against the property. The Respondent Piccione was aware of the fact that a Lis Pendens had been or was going to be filed against the property, but he instructed his salesperson, Respondent Harris, to withhold this information from the parties to the sales transaction at the time of closing. The closing was completed and the lender, without knowledge of the pending suit and Lis Pendens, disbursed the net proceeds of $15,728.24 to Mr. Hamilton as the seller. The closing Attorney and the lender were informed of the Lis Pendens and the pending suit by the attorney for Mr. Alsobrook the day after the closing took place. Upon being informed of the pending lawsuit, the lender contacted the seller, who agreed to return the proceeds to the lender The lawsuit was subsequently dismissed and the Lis Pendens discharged upon distribution of the net sale proceeds to Mr. Alsobrook in the amount of $6,385.19 and to Mr. Hamilton in the amount of $9,393.05. The Respondents received a commission of $1,500 which was paid $900 to Mrs. Harris and $600 to Piccione Real Estate, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Theresa M. Harris, be found guilty of violating Section 475.25(1)(b), Florida Statutes, and that her license be suspended for one year. It is further RECOMMENDED that the Respondents, John J. Piccione and John J. Piccione Realty, Inc., be found guilty of violating Section 475.25(1)(b), Florida Statutes, and that their licenses be suspended for one year. THIS RECOMMENDED ORDER entered on this 27 day of September, 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 27 day of September, 1982.
Findings Of Fact The Respondent, Cluett Realty, Inc., is a licensed corporate real estate broker having been issued license number 0216798 and whose last known address is 4720 Palm Beach Boulevard, Fort Myers, Florida. The Respondent, Ernest H. Cluett II, is a licensed real estate broker having been issued license number 0191613 and at all material times was employed as a licensed real estate broker by Cluett Realty, Inc. In November, 1981, Mary Ann Knopic was shown a home in Cape Coral by the Respondents. She offered the owners $92,500 for the home with a $500.00 earnest money deposit. When the home was sold to another buyer, the Respondents and Knopic agreed that the Respondents would retain the $500.00 and attempt to find another home for the complainant. In December, 1981, the Respondents showed Knopic the Soviero home and Knopic made an offer on the home and secured the offer with an additional $1,500 security deposit. In late February, 1982, the complainant informed the Respondents that she would not close on the Soviero home. The complainant decided not to close because the cost of renovating the home exceeded the original estimate. Under these circumstances, the complainant was willing to lose her $2,000 deposit rather than spend $6,000 to renovate the Soviero home. On June 8, 1982, after the complainant agreed to the February disbursement, she sent the Respondents a letter demanding either a copy of the contract which amended the earnest money amount or a refund of her $1,500. Walter V. Horn, a Respondent, was not properly served and at final hearing the petitioner agreed that he was not a proper party to this proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered dismissing the Administrative Complaint filed against the Respondents, Cluett Realty, Inc., Ernest H. Cluett II and Walter V. Born. DONE AND ENTERED this 11th day of July, 1984, at Tallahassee, Florida. SHARYN L. SMITH 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 11th day of July, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Legal Section Post Office Box 1900 Orlando, Florida Herbert A. Fried, Esquire 1625 Hendry Street, Suite 103 Fort Myers, Florida 33901 Mr. Walter V. Horn 4732 Dee Prado Boulevard Cape Coral, Florida 33904 Harold Huff, Executive Director Division of Real Estate Department of Professional Regulation post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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
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 The issue in this proceeding is whether Petitioner's loss of a real estate broker's license by a stipulated disciplinary suspension in 1983 is a proper bar to his mortgage broker application as principal broker for Center State Mortgage Company.
Findings Of Fact Terry E Christensen ("Christensen") was first licensed as a mortgage solicitor in 1983, under Chapter 494, Florida Statutes. In 1984, he obtained his mortgage broker's license. The licenses were renewed in 1984 and 1985. His employer was Cenflorida Mortgage Corporation in Altamonte Springs, Florida, where he served as principal broker and vice president. (Testimony of Christensen, Petitioner's Exhibit #1.) Christensen left Cenflorida Mortgage Corporation in April 1986, and started his own company, Center State Mortgage Corporation in Longwood, Florida. He immediately filed his application with the Department of Banking and Finance ("Department") for registration as principal mortgage broker with the new company. That application was denied by letter dated May 13, 1986, for violations of Section 494.05(1)(h) and (k), Florida Statutes. The letter provides, in pertinent part: The application is denied by the determi- nation of the Division of Finance that Section 494.05(1)(h) and (k is [sic] being violated. Section 494.05(1)(h) of the Mortgage Brokerage Act states that conduct of an applicant would be cause for denial of a license. Section 494.05(1)(k) states that a licensee may be denied a license if they currently have a real estate broker or salesman license under suspension. In your particular case, our records indicate that your real estate license has been suspended for a five year period, starting June 21, 1983. (Testimony of Christensen, Petitioner's Exhibits #1 and #2.) On June 29, 1983, the Florida Real Estate Commission suspended Christensen's real estate broker's license for a period of five years. Christensen first told the Department about his real estate broker's license suspension when he applied for license as a mortgage solicitor in 1983. (Testimony of Christensen.) Subsection 494.05(1)(k), Florida Statutes, was added to the statutes effective October 1, 1985. (Chapter 85-271, Laws of Florida.) Around the same time the new law took effect, the Department commenced revocation proceedings against Christensen. By its notice docketed on September 27, 1985, and its amended notice dated March 4, 1986, the Department informed Christensen that it intended to suspend or revoke his mortgage broker's license under Chapter 494 on the basis of his prior activities as a real estate broker. Those prior activities were the subject of a civil consent judgement against Christensen and his realty company and resulted in the stipulated suspension of his real estate broker's license addressed above. The Department's administrative proceeding #85-28-DOF was referred to the Division of Administrative Hearings and was assigned DOAH Case No. 86-0328. (Petitioner's Exhibits #3 and #4.) The parties stipulated to the facts, and on June 10, 1986, DOAH Hearing Officer, J. Lawrence Johnston, issued his Recommended Order recommending dismissal of the complaint. The Recommended Order provides: * * * 3. In this case, Petitioner, Department of Banking and Finance (Department), has not established in the evidentiary record or anywhere else in the official record of this case that the real estate broker license of Respondent, Terry E. Christensen (Christensen), was suspended based on fraud, misrepresentation, or deceit. As seen in the Procedural Background, Christensen sufficiently generally placed in issue whether suspension of his real estate broker's license was based on fraud, misrepresentation, or deceit. The Department did not succeed in pre-hearing procedures to specifically eliminate the issue. The facts stipulated by the parties are not sufficient to prove that the suspension of Christensen's real estate broker license was based on fraud, misrepresentation, or deceit. Although a copy of the Administrative Complaint in the Florida Real Estate commission case was referred to in the copy of the Florida Real Estate Commission Stipulation that was filed in this case, it was not attached to the Stipulation or otherwise made part of the evidentiary or official record in this case. This Hearing Officer is therefore given no choice but to conclude that the Department has not proven its case. * * * (Petitioner's Exhibit #5.) The Department adopted the Recommended Order in its entirety and dismissed the case. (Petitioner's Exhibit #7.) From 1983 until mid-1986, Christensen processed approximately five hundred mortgage loan applications with an approximate value of $50,000,000.00. To his knowledge, no complaints have ever been made to the Department regarding Christensen's activities as a mortgage solicitor or broker. (Testimony of Christensen, Petitioner's Exhibit #6.)
Recommendation Based on the foregoing, it is recommended that a Final Order be issued granting the mortgage broker's license to Terry Christensen. DONE and ORDERED this 7th day of November, 1986, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 \ Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2498 The following constitute my specific rulings on the proposed findings of facts submitted by the parties. PETITIONER'S FINDINGS OF FACT 1-3. Adopted in Paragraph #1. 4-5. Adopted in Paragraph #5. Rejected as irrelevant. Adopted in Paragraph #3. 8-12. Adopted in Paragraph #4. 13. Rejected as unnecessary. 14-15. Adopted in Paragraph #4. 16-18. Rejected as unnecessary. RESPONDENT'S FINDINGS OF FACT 1. Adopted in Paragraph #1. 2-4. Adopted in Paragraph #4. 5. Rejected as unnecessary. 6-8. Adopted in Paragraph #4. 9. Rejected as immaterial. 10-11. Adopted in Paragraph #2. 12-16. Rejected as immaterial. 17. Adopted, as to the first sentence, in paragraphs #3 and #4; otherwise, rejected as immaterial. COPIES FURNISHED: Gorham Rutter, Jr., Esquire Suite D 338 North Magnolia Avenue Orlando, Florida 32801 Robert Good, Esquire Suite 501 400 West Robinson Street Orlando, Florida 32801 Honorable Gerald Lewis, Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32301 Charles Stutts, Esquire General Counsel Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32301
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Subsection 475.25(1)(f), Florida Statutes, and that Respondent's real estate broker license be suspended for a period of six months. DONE and ENTERED this 12th day of November, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1982.
The Issue At issue herein is whether respondents' real estate licenses should be disciplined for-the alleged violations set forth in the administrative complaint. Based upon all of the evidence, the following facts are determined:
Findings Of Fact At all times relevant hereto, respondent, Juan Rios, was a licensed real estate broker having been issued license number 0155126 by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent, Victoria R. Rios, is a licensed real estate broker-salesman having been issued license number 0331183 by petitioner. The Rios are husband and wife and presently reside at 855 80th Street, #1, Miami Beach, Florida. On December 13, 1982, Juan Rios obtained a six-month multiple listing agreement to sell a house located in Hacienda Estates at 11451 S.W. 33rd Lane, Miami, Florida. The agreement was executed by Rios "As Realtor" and by the property owner, Mercedes Garcia. At Mercedes' request, the Rios placed an initial sales price of $145,000 on the home. On December 15, a similar agreement was executed by Rios and Garcia on condominium unit 9B, Laguna Club Condominium, 10710 N. W. 7th Street, Miami, Florida. That property was also owned by Garcia. Although the agreement introduced into evidence does not contain Rios' signature, at final hearing Juan Rios acknowledged that he had executed such an agreement. The listing agreements provided that if the properties were leased during the term of the agreements, the listing realtor would receive a brokerage fee of 10% for such leasing. The agreement also provided that the realtors were not responsible for vandalism, theft or damage of any nature to the property. Garcia is a native and resident of Venezuela, where she owns a radio station. The two properties in question were previously owned by her father. When the father died, apparently sometime in 1982, Mercedes inherited the house and condominium. The Rios were friends of the father, and agreed to list and manage the properties as a favor to the deceased. Mercedes left the country after the agreements were signed, and has apparently not returned. Although she is the complainant who initiated this matter, she did not appear at final hearing. The house at 11451 S. W. 33rd Lane had been vandalized prior to the listing agreement being signed. According to documents introduced into evidence, the property has also been the subject of subsequent vandalisms, the nature and extent of which are unknown. A tenant was eventually procured by Mercedes' aunt in February, 1983 at a monthly rate of $800. The tenant, a Mrs. Ramirez, paid some $4,800 in rents and deposits before she was killed at the home in June, 1983. The Rios spent some $2,644.36 of the $4,800 on repairs to the vandalism and for general maintenance. They also retained a 10% commission for their services, or $480. That left $1,675.64 owed to Mercedes. No lease was apparently ever signed by Ramirez, or at least none was given to the Rios by the relative who procured the tenant. The home was eventually sold to Mercedes' aunt for $85,000.1 None of the rental monies were placed in the Rios' trust account. The condominium unit was rented in June, 1983. The tenant, Oscar Ruiz, had answered an advertisement run by the Rios in a local newspaper. Although Ruiz executed a lease to rent the unit at a monthly rate of $500, the Rios did not have a copy of same, and claimed none was kept in their records. According to the Rios, Ruiz continued to rent the unit through April, 1984, or for eleven months. Total monies collected by the Rios from Ruiz, including a $500 security deposit, were $6,000, of which $3,364.86 was spent for maintenance, utilities, two mortgage payments, and a $500 payment to the owner (Mercedes). An additional $40.33 was spent on a plumbing bill, and $600 was retained as a commission by the Rios. This left $2,724.53 owed to Mercedes. None of the rental monies were placed in the Rios' trust account. In the spring of 1984, Mercedes retained the services of an attorney in Miami to seek her monies due from the Rios. Up to then, she had received no income or accounting on the two properties. The attorney wrote the Rios on several occasions beginning in April 1984, asking for a copy of the lease on the condominium unit, the security deposit, an accounting of the funds, and all other documents relating to the two, properties. He received his first reply from the Rios on May 3, 1984 who advised him that they had attempted to reach Mercedes by telephone on numerous occasions but that she would never return their calls. They explained that rental proceeds had been used to repair vandalism damage and structural defects. When the attorney did not receive the satisfaction that he desired, he filed a civil action against the Rios on October 10, 1984. On October 26, 1984 the Rios sent Mercedes a letter containing an accounting on the two properties reflecting that she was owed $4,400.17 by the Rios. To pay this, they sent a $140 "official check," and a promissory note for the balance to be paid off in 40 monthly installments at 10% interest. They explained that their real estate business had closed, and due to financial problems, they were unable to pay off the monies due any sooner. They also asked that she instruct her attorney to drop the suit. Mercedes rejected this offer and has continued to pursue the civil action. It is still pending in Dade County Circuit Court. At final hearing, the Rios characterized their involvement with Mercedes as a "professional mistake," and one undertaken out of friendship for Mercedes' father. They acknowledged they did not use a trust account on the transactions and that they had used the $4,400 in rental money due Mercedes for their own use. They considered the excess rent proceeds to be compensation for other "services" performed by them on behalf of Mercedes. However, there is no evidence of any such agreement between the parties reflecting that understanding.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is Recommended that Juan and Victoria Rios be found guilty as charged in Counts II and III, and be found guilty of culpable negligence and breach of trust in Count I. It is further recommended that Juan Rios' license be suspended for one year and that Victoria Rios' license be suspended for three months. DONE and ORDERED this 20th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1986
The Issue Should Respondent's license as a real estate broker be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency charged with the responsibility of investigating and enforcing the provisions of Chapter 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate broker in the State of Florida, issued license number 0152815 in accordance with Chapter 475, Florida Statutes. Robert L. Purlee and Doris A. Purlee (Purlees) conveyed certain real property located at Unit 1303-A, Jamestown Condominiums, within Pinellas County, Florida, to Ralph F. Marotte and Eve K. Marotte (Marottes), on June 18, 1993, for an agreed upon sum of $15,000, with installments due over a period of 120 months, at the rate of $181,99 per month, beginning July 15, 1993. Since there was no express language in the deed to express a contrary intent, the conveyance to the Marottes created an estate by the entirety which was not available to answer for the individual debts of either of the tenants. The Marottes executed a mortgage and ad promissory note creating a lien against the property in favor of the Purlees, to secure the timely payment of the sum owed by the Marottes. At the time the Marottes purchased the property in question from the Purlees, there were no other liens or encumbrances against the property. At the time the deed was recorded, there was two personal judgments filed of record against Ralph F. Marotte, individually, but no personal judgments filed of record against Ralph F. Marotte and Eve K. Marotte, jointly or as husband and wife, or Eve K. Marotte, individually. Since no copies of these judgments, certified or otherwise, were introduced as evidence, and David Eaton appeared to be confused about these judgments, this finding is based on the testimony of Eve K. Marotte which I find credible. On November 10, 1993, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: We are unable to financially own this unit, therefore, we wish to deed it back to you and your wife, and record it in the courthouse. Rather than go thru foreclosure proceedings and lawyer’s fees etc., thought the simplest best way for both of us is to just return the property back to you both, and have the tenant send her rent payment directly to you. We have prepared the deed - and after it is recorded - have the courthouse send it to you directly. (Emphasis Supplied) * * * On December 8, 1993, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: Attached is a copy of the Quit Claim Deed - which is being recorded and will be mailed to you directly. (Emphasis Supplied) * * * On January 6, 1994, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: We went to the courthouse to record the deed, and realized that we did not take the mortgage off, so we are enclosing a satisfaction of mortgage, so that we can turn the property back to you- and you will then own it free and clear as you did before. As soon as we received this paper from you, will turn over everything, to you, that is, keys, etc. (Inventory remains the same). (Emphasis Supplied) * * * From the notation on the quit claim deed it appears that the Marottes attempted to record the deed at the courthouse but changed their mind as indicated in the letter. The Purlees executed the satisfaction of mortgage and posted it with the United States Postal Service for delivery to the Marottes. Subsequently, the Purlees discussed the matter with their attorney, David A. Eaton, who advised the Purlees to have the satisfaction of mortgage retrieved from the postal service. This was accomplished, and the Marottes did not receive the satisfaction of mortgage. Therefore, the Marottes did not record the quit claim deed transferring title back to the Purlees. Based on the testimony of Eve K. Marotte which I find credible, Eve K. Marotte continued in her effort to deed the property back to the Purlees, and even discussed the possibility of satisfying the personal judgments against Ralph F. Marotte in the process. In fact, Respondent even arranged for the sale of the property but that did not prove fruitful either. At the time the Marottes attempted to deed the property back to the Purlees, the Marottes did not advise the Purlees of the personal judgments against Ralph F. Marotte, individually. Since the conveyance of the property to the Marottes created an estate by the entirety, the property would not have been subject to any judgments against Ralph F. Marotte, individually upon the Marottes deeding the property back to the Purlees. There was no intent on the part of the Respondent to “saddle” the Purlees with Ralph F. Marotte’s personal judgments. Likewise, there was no intent on the part of Respondent to mislead or misrepresent the circumstances surrounding the attempt to “deed back” the property or to induce the Purlees to execute a satisfaction of mortgage so that the Marottes could record such satisfaction or mortgage without recording the quit claim deed and thereby have the property free and clear of the mortgage. Although the Marottes did make some of the mortgage payments, they did not make all of the payments as contemplated by the mortgage and promissory note. Their failure to make mortgage payments was due to their financial condition and not that the Marottes were intentionally attempting to deprive the Purlees of the property without paying for the property. The Marottes collected some rent from the property but apparently did not apply this money toward the mortgage payment. However, there was no evidence, other than the requirement of making the mortgage payments, that the Marottes were required to pay the rent over to the Purlees. On or about November 6. 1995, the Purlees filed a complaint with the Circuit Court of the Sixth Judicial Circuit of the State of Florida, in and for Pinellas County, against the Marottes alleging, inter alia, that Respondent committed fraud and dishonest dealing in a real estate transaction. On a Motion for Summary Judgment filed by the Purlees, the court entered a Final Judgment Against Licensed Real Estate Broker, Eve K. Marotte, for Monetary Damages Arising Out of Fraudulent Conduct in a Real Estate Brokerage Transaction on March 1, 1996. Additionally, the court entered a Final Judgment Against Eve K. Marotte and Ralph F. Marotte for the total sum of $95, 454.95 which included $22, 284.54 in actual damages, $66,853.62 in trouble damages pursuant to Section 772.11, Florida Statutes, $5,250.00 in attorney’s fees, and $1,066.79 in taxable costs. Because of this judgment and other financial and personal circumstances surrounding the Respondent’s life at that time, the Respondent filed for bankruptcy which eventually “wiped out” this judgment. Subsequently, the Purlees filed a separate proceeding for foreclosure of the mortgage, and obtained title to the property by foreclosure sale on or about August 1997. Between the time of the initiation of the foreclosure proceeding and gaining title to the property, the Purlees had a receiver appointed to receive the rent on the property. Although David Eaton testified that the Marottes failed to turn over rents during this period, there is insufficient evidence to show that the Marottes received any rent during this period or that the property was rented at all times during this period. Clearly, after engaging an attorney and obtaining the large judgment, the Purlees were not interested in taking the property back without the judgment being satisfied. Likewise, it is equally clear that Respondent was not financially able to pay the judgment. Respondent did not intentionally or otherwise misrepresent the facts in order to induce the Purlees to accept the deed back and release her from her obligation, or act in a fraudulent manner in order to convince the Purlees to release Respondent from her obligation, or act dishonestly in her dealings with the Purlees.
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 dismissing both Count I and Count II of the Administrative Complaint. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Geofrrey T. Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Suite N-308 Orlando, Florida 32801 Eve K. Marotte, pro se 2616 46th Terrace North St. Petersburg, Florida 33714
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.
