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
Findings Of Fact Scorpio, Inc. was incorporated to do business in this State on September 18, 1973 and was registered as a corporate real estate broker on 4/8/74 with certificate to expire 3/31/75. Laverne Pariso was a registered real estate broker and Active Firm Member for Scorpio, Inc. from 4/8/74 to expiration date of license 3/31/75. Michael W. Karpan was a registered real estate salesman from 10/1/74 to 9/30/76 the expiration date of his registration and was employed by Scorpio, Inc. About the time Scorpio, Inc. was registered as a corporate broker the real estate market was not conducive to the success of housing developments and, since the registration of Scorpio, Inc. was obtained to facilitate sale of the developed property and no development was started, Scorpio, Inc. did no business of the type for which it was registered. No listings were obtained, no sales were made, and no effort was put forth to do either. An escrow account was opened with an initial $50 deposit but during the time the registration was effective no deposits were made to, or withdrawals from, this escrow account. Ardina E. Karpan, the mother of Michael W. Karpan, owns all of the stock of Scorpio, Inc. Laverne Pariso, the APM, left the employ of Scorpio, Inc. in March, 1975 but did not notify the FREC or take steps to place her registration in an inactive status. Applications were made for renewal of the broker's license of neither Pariso nor Scorpio, Inc. when due, 3/31/75. By Corporate Resolution dated February 1, 1974 Scorpio, Inc. authorized the establishment of an escrow account at the Barnett Bank of Miami. An initial deposit of $50 was made to this account on February 6, 1974. The resolution authorizes Laverne Pariso and Michael W. Karpan or Ardina Karpan to sign checks on this account and notes that two signatures are required. The resolution further provided authorized signers "are both Laverne Pariso and Michael William Karpan, Jr., both signature are required". Scorpio, Inc.'s primary business was the management of shareholder's investments and real estate holdings. In May, 1975 Michael Karpan was approached by a business associate, whose daughter was a creditor of Chandelier of the Virginia Playhouse d/b/a Track and Turf Lounge, to assist in the negotiations for the sale of the business in order to pay off the creditors and salvage his daughter's loan. The purchaser was already at hand and Karpan was selected to hold funds advanced pending the closing of the deal. After the principals had agreed on the basic price to be paid for the business an earnest money deposit of $5,000 was given by the buyer to Karpan on or about May 21, 1975 and the agreement was memorialized in a letter of May 21, 1975 from Karpan, on Scorpio, Inc. letterhead to the buyer, Walker (Exhibit 25). Nowhere on this letter is reference made to either Karpan or Scorpio, Inc. being associated with real estate sales. The $5,000 received from Walker was deposited in Scorpio, Inc's escrow account on deposit slip dated May 21, 1975 and the bank statement (Exhibit 10) shows $5,000 deposited in this account 5/30/75. No other agreement between the parties was reduced to writing and signed by the buyer and seller. At no time during the negotiations did Karpan hold himself out to be a real estate salesman or broker or indicate he expected a commission for his services if the sale was consummated. On May 29, 1975 Karpan borrowed $5,000 from the Barnett Bank and used the $5,000 in the escrow account as cash collateral for the loan. The signature of Pariso was not on any paper to authorize the withdrawal of this money from the escrow account. The loan was placed in the regular account of Scorpio, Inc. c/o Michael Karpan and one check dated 5/30/75 in the amount of $3,699 was drawn on the account payable to the Intercontinental Bank of Miami and used to make interest payment owed by the Chandelier of the Virginia Playhouse. $1,301 was delivered to the manager of Track and Turf Lounge by Karpan (Exhibit 4). Karpan contends that the buyer, Walker, authorized him to make whatever payments were necessary out of the $5,000 deposit to insure that the liquor license would not be lost or the Track and Turf Lounge be placed out of business before the deal was consummated. Following the delivery of the $5,000 to Karpan the buyer brought his attorney into the proceedings. The property on which the Track and Turf Lounge is located was owned by D. Mitchell Investments, Inc. The lease arrangements (or lack thereof depending on which witness is more credible) were such that the sale could not be consummated. By letter dated June 12, 1975 the buyer, through his attorney, demanded return of the $5,000 deposit given to Karpan. No evidence was presented as to the date the $1,301 was given to Roy O'Nan, the manager at Track and Turf. The letter evidencing such payment is dated well after the transaction had fallen through and demand for return of the $5,000 had been made. A suit was subsequently filed by Walker and a default judgment was obtained against Scorpio, Inc. after a Motion to Strike Defendant's, Scorpio, Answer because Scorpio, Inc. was delinquent in paying the annual $5.00 filing fee required of Florida corporations, was granted. At the time the transactions here being contested occurred the registration of Laverne Pariso and Scorpio, Inc. had expired. Since Karpan can only work under the supervision of a broker, his license too was not operative. Ms. Pariso renewed her license as a broker-salesman with another realty office in September, 1975 but no evidence was presented that Scorpio, Inc. ever applied for registration renewal. During the period between March and September, 1975 Ms. Pariso did no real estate work. Numerous discrepancies appeared between the testimony and documents. Although the authorization for withdrawing funds from the escrow account provided that the signature of Pariso and Michael Karpan or his mother was required the bank apparently interpreted that to require any two of the signatures and then authorized one first deposit placed in the escrow account after the initial deposit to be withdrawn with only Karpan's signature. Several witnesses alluded to Track and Turf leasing the premises which they occupied but evidence was presented that no lease payments were to be made until 1978. Certainly the inability of the "tenant" to transfer the "lease" was a major factor in the failure of the sale to transpire. The sale here involved was the sale of a business as contrasted to the sale of real property.
Findings Of Fact Respondent Gene Lawrence (Lawrence) is president of Respondent Home Owner's Equity Fund, Inc. (Homeowners) and has been for six years. He is not licensed as a real estate broker or salesperson in Florida and has not been so since 1987 or 1988. He has never worked actively in the real estate business. At no time has Homeowners ever employed a licensed real estate broker, nor was it itself licensed to engage in real estate brokerage activities. Homeowners was formed in 1986 or 1988. Lawrence is the sole owner of Homeowners. From December 1986 through December 1993, Homeowners engaged in business involving the purchase and sale of single-family homes, employing from 1-3 employees in its principal place of business in Ft. Myers. In general, Homeowners purchased homes and sold them to buyers, receiving installment payments for the purchase price. In most cases, Homeowners used contracts for deed or sometimes a lease-purchase arrangement. Homeowners located buyers through newspaper advertising. The advertisements stated that a person could own his own home instead of paying rent for about the same monthly payment. Advertisements, mostly in a shopper- type newspaper, ran almost continuously. One of Homeowner's ads, under the "For Sale by Owner" category, states: HAVE YOU HAD TROUBLE GETTING A MORTGAGE? CAN YOU AFFORD $500 OR MORE PER MONTH? WE CAN PUT YOU IN A HOME OF YOUR CHOICE! INVESTORS WILL BUY THE HOME & HOLD THE MORTGAGE. NO QUALIFYING. 332-0043 Another Homeowner ad, under rental properties, states: WOULD YOU RATHER OWN THAN RENT? FOR THE SAME MONTHLY PAYMENTS AND DEPOSIT YOU CAN PURCHASE YOUR OWN HOME! VARIOUS PRICES - SIZES - AREAS. NO BANKS, NO CREDIT CHECKS, NO HASSLES. CALL 332-0053 TODAY!! After meeting a customer in the office, Lawrence or another employee of Homeowners would determine if the customer's desires were reasonable. If so, the customer's profile, including needs and ability to pay, would be filed. If the customer was interested in obtaining the services of Homeowners, the customer had to pay a fee at the initial meeting. The fee was usually $125. The service provided by Homeowners was to offer to sell to the customer homes that it already owned or, more often, homes that it was willing to purchase. If the customer became interested in a house that Homeowners was unwilling to purchase, Homeowners would not assist the customer in any way. Following the initial visit, Homeowners would give the customer a list of homes that Homeowners was considering buying. At the same time, Homeowners did a credit check on the customer. The fee paid by the customer entitled him to these services from Homeowners for 120 days. Homeowners typically purchased homes with seller- provided financing, usually with a low down payment. The homes were of a price that Respondents' customers could afford, given their modest means. The price range was typically $50,000 to $60,000. In Lee County, where Respondents focused their efforts, a house in that range might have two or three bedrooms. If the customer purchased a home from Homeowners, it would credit his fee against his first month's payment. Otherwise, the fee was nonrefundable. When Homeowners purchased a home, Lawrence typically handled the negotiations with the listing agent. Lawrence or one of Homeowners' employees then negotiated the sale to the customer. On November 15, 1991, Curtis McRee gave Lawrence a $750 down payment on a mobile home and lot in N. Ft. Myers. At the same time, he and his wife, Lynda L. McRee entered into a contract for deed with Homeowners under which Homeowners would convey "by a good and sufficient deed" fee simple title, clear of all encumbrances, if the McRees paid an additional $24,250 with interest at an annual rate of 10.5 percent through monthly payments of $386. At this rate, 92 monthly payments would be required to satisfy the obligation. The contract for deed involves a mobile home lot, but omits any mention of a mobile home. On the same date, Respondents acquired the same property from a third party. The purchase money mortgage note was for $19,750, bearing interest at the annual rate of 10 percent, and payable by 84 monthly payments of $327.87. When the McRees missed some payments, Respondents failed to make payments to their mortgagee, which foreclosed on the mortgage and retook title to the property. On May 18, 1992, Homeowners acquired three lots from a third party for $30,319.80. On the same date, Homeowners entered into a contract for deed with Delfino and Candelaria Lopez under which Homeowners would convey fee simple title to the three lots, free of all encumbrances, by a "good and sufficient deed," if they paid $39,950 at 10.5 percent annually by monthly payments of between $375 and $396. On May 25, 1992, Laura A. Ortiz paid Homeowners a fee of $120. The receipt form states that Ms. Ortiz acknowledges that the fee "is collected in advance from clients interested in purchasing residential property, owned, or to be owned by [Homeowners]." The form adds that, during the next 120 days, Homeowners will offer Ms. Ortiz homes with monthly payments of less than $500 and Homeowners will offer owner financing at 10.5 percent annually. The form concludes by noting that the fee is nonrefundable, but will be credited toward the first monthly payment. On June 25, 1990, Homeowners acknowledged receipt from Ms. Ortiz of $500 as an "escrow deposit" for property located at 15779 Treasure Island. It is unclear whether Homeowners had a contract with the owner of 15779 Treasure Island when Homeowners accepted Ms. Ortiz's $500 escrow deposit. However, a dispute developed between Homeowners and the owner over liability to repair a roof, and Homeowners could not offer the property to Ms. Ortiz, who instead rented another property owned by Homeowners at a monthly rental of $500. Based on Lawrence's affidavit, Ms. Ortiz paid Homeowners a deposit of $4000, of which only $3500 was refunded when the deal fell through. The $500 withheld was to pay rent that Ms. Ortiz owed. On April 19, 1993, Rosa Saez paid Homeowners the $125 fee and entered into a receipt form of the type described above. Ms. Saez found a house that she liked and paid Homeowners a deposit of $1000. When some problem arose preventing Homeowners from purchasing the property that she wanted, Lawrence returned the $1000 deposit by giving Ms. Saez a personal check dated July 8, 1993. There is no evidence connecting Humberto Zabala or Sandra Aparicio to Homeowners or Lawrence. In December 1993, Homeowners stopped operating due to the pending disciplinary investigation and poor health of Lawrence. In March 1994, Lawrence began operating a similar type of business in his own name. He claims that he is not a broker and does not need to be licensed because he does not put buyers and sellers together nor does he charge a commission. Lawrence claims to sell only the homes that he owns and does so as a "social service for people," which he has continued to offer, despite doing no better than breaking even, due to a "dogged determination, a perseverance, perseverance and tenacity."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing Counts IX and X of the Administrative Complaint, finding each Respondent guilty of four counts of engaging in real estate brokerage activities without a license, and imposing an administrative fine of $5000 against Gene Lawrence and $5000 against Home Owners Equity Fund, Inc. ENTERED on August 24, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on August 24, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-12: adopted or adopted in substance. 13: rejected as unsupported by the appropriate weight of the evidence. 14-15: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-3: adopted or adopted in substance. 4: rejected as unsupported by the appropriate weight of the evidence. Typically, Homeowners did not acquire the real property until a customer had expressed interest in the property. 5: adopted or adopted in substance. 6-8: rejected as unsupported by the appropriate weight of the evidence. 9-11: adopted or adopted in substance. 12: rejected as unsupported by the appropriate weight of the evidence. 13-14: adopted or adopted in substance. 15: rejected as irrelevant. 16-18: adopted or adopted in substance. 19: rejected as unsupported by the appropriate weight of the evidence. 20-21: rejected as irrelevant. COPIES FURNISHED: Attorney Theodore R. Gay Department of Business and Professional Regulation 401 NW 2nd Ave. Suite N-607 Miami, FL 33128 Harry Blair Blair & Blair 2138-40 Hoople St. Ft. Myers, FL 33901 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900
Findings Of Fact This matter arose from the sale of a certain apartment building in Dunedin, Florida, known as Piper's Ten. This building was owned by two foreign corporations, the principals of which are represented by a Mr. Eugene Morgan of Boston, Massachusetts. Douglas S. Kennedy, Defendant, is a registered real estate salesman whose license was registered with Lockhart Realty, Inc., of Seawalls Point, Florida, the broker for which was his then wife Trude Kennedy. The Defendant and his wife were involved in domestic difficulties which eventually lead to a divorce. When the Defendant and his wife separated sometime in late 1972, he sought out his friend and business associate, Eugene Morgan, who suggested that the Defendant move to Dunedin, Florida and reside in the model apartment at Piper's Ten. The Defendant heeded the suggestion and took on the assignment as resident manager of the Piper's Ten Apartments at a final salary of approximately $1,000 per month. According to the Defendant and Mr. Morgan, his prime responsibility was seeing that Morgan and his co-investors in the property "receive a fair shake with the local people in and around Dunedin, Florida." At the time the property was registered with a real estate broker of Dunedin, Florida, whose name is Mr. Woodrow Register, and he had an exclusive listing on the sale of Piper's Ten Apartments. The initial arrangement between Morgan and the Defendant was that the Defendant would live in the apartment rent free and he would be paid an amount to defray his expenses for the management responsibility. When the Defendant became dissatisfied with this arrangement approximately 3 weeks later, he notified Mr. Morgan that he could no longer remain in Dunedin under that arrangement. This set the stage for the new arrangement referred to above whereby the Defendant was to be paid $1,000 per month payable out of the proceeds, when and if the building was sold. According to Morgan, this arrangement was to last for at least 4 to 5 months or until such time as a purchaser was located to purchase the apartment building. During April 1973, Kelly Prior Realty of Dunedin produced a proposed purchaser for the property at the purchase price of $400,000 which was the amount set by the owners who had agreed to pay a real estate commission of 5 percent. Kelly Prior Realty prepared a proposed contract of sale and purchase and submitted it to the offices of the attorney for the seller, Raymond Argyros, who after certain modifications, submitted the contract to the sellers for their approval. At the closing in May 1973, Kelly Prior, the selling broker, received a full commission of 5 percent as agreed upon by their sellers in their open listing of the property. According to attorney Argyros, the Defendant received a check for $5,000 as agreed upon between the Defendant and Morgan and according to him, the contract erroneously referred to such payment as a commission. It is this $5,000 payment which is the matter of controversy in this hearing. According to Morgan, Defendant was hired to "see if he could get Morgan and his associates a fair shake with the local people in Dunedin respecting the management of the apartment building." Originally the two story building was primarily an office space on the lower level and approximately ten apartments on the upper level. The plan was to rent the upper level as a condominium and to lease the office space on the lower level. Morgan was unable to sell the condominiums on the upper level based on the fact that prospective purchasers did not want to buy condominiums in a building approximately 50 percent comprised of office space. With this fact, Morgan and his associates made the decision to convert the lower level to apartments as well. When this was done, the Defendant saw to it that the building was properly managed and provided feedback to Morgan in order to keep him advised at all times of the situation with the apartment building. When the building was sold, Kelly Prior Realty Company received the commission of $20,000 which represented 5 percent of the total purchase price and the Defendant received $5,000 for his efforts. In this regard, the Defendant received a check drawn in the amount of $5,000 and the check bore a notation that the amount represented a commission. When the Defendant noted this, he changed the face of the check to reflect that the amount paid was intended to be an agency fee for the sale of Piper's Ten. The Defendant played no part in the drafting of the purchase and sales agreement. After the closing, the Defendant also was given the furniture from the model apartment and he thereafter departed for Puerto Rico. Trude Kennedy, the Defendant's former wife, testified that Lockhart Realty was in no way associated with the sale of Piper's Ten. Trude Kennedy had several conversations with Mr. Morgan regarding the sales and problems which he encountered with Piper's Ten. However the basis of these statements involved other businesses which she had with Morgan regarding the sale and subdivision of other properties in and around Dunedin. Mrs. Kennedy was unaware of the amount paid to the Defendent and she made no claim for such funds when the payment was disbursed. Morgan denied that the amount in any way reflected a commission but rather was payment for the services which the Defendant rendered in the general upkeep and management of the building such that he could be fully advised at all times of the progress, if any, that the local realtors were having with the sale of the apartment building. With these facts, the undersigned is of the opinion that the $5,000 sum given to Kennedy represented the amount as per the agreement he had with Morgan. There was no evidence that he participated in any way with the sale of the building other than to advise Morgan of any efforts that the other local realtors played in locating purchasers. It was noted that the check which represented payment for these services indicated that the amount originally was a commission. However, the Defendant, when noting that the designation of a commission was included on the check, immediately advised Mr. Argyros, the seller's agent, to correct that mistake by placing a designation that the amount represented was intended to be a "seller's agent" fee. This correction was made prior to the time the check was deposited and it was done with the consent of attorney Argyros. There was no evidence that the Defendant demanded such amount as a commission for his efforts as a salesman or that he showed the property to prospective purchasers as a real estate salesman. Thus it appears that the amount paid to the Defendant was an amount given him for his services as testified to by Morgan. The amount paid also appears to correspond with the arrangement as testified to by Morgan. I therefore find that the $5,000 sum paid the Defendant represented an amount for services that he rendered, not as a real estate salesman, but rather, as a property manager of the Piper's Ten Apartment building.
Findings Of Fact Herbert Goldman is a registered real estate broker holding license number 0032343 issued by the Florida Real Estate Commission. Herbert Goldman maintains an office at the Robertson Building, Ocala, Florida, consisting of at least one closed room, wherein negotiations and closings of real estate transactions of others may be conducted and carried on with privacy and where the books, records, and files pertaining to the real estate transactions of Herbert Goldman are maintained. On the entry way to the Robertson Building, Ocala, Florida, there is a Building Directory and on this directory, there appears "Goldman, Herbert, Realtor, Room 214." See Exhibit 4. On the second floor of the Robertson Building, Ocala, Florida, in Room 214, Herbert Goldman maintains the office described above outside of which is a sign stating the following: "Herbert Goldman, Registered Real Estate Broker." It was admitted that the second floor of the Robertson Building is generally closed to public and that the Robertson Building is owned by the Estate of Mr. Herbert Goldman's deceased father. By direct contact with Herbert Goldman or his brother, an attorney who maintains an office on the first floor of the Robertson Building with access directly to the street, authorized persons may gain access to Herbert Goldman's office. Herbert Goldman engages in an active real estate brokerage primarily consisting of site location for shopping centers and similar developments for clients throughout the United States. Herbert Goldman does not solicit nor desire to participate in a general real estate practice. Goldman makes no pretense that he maintains an office in Room 214 of the Robertson Building, which is at all times staffed and which is an office in the conventional sense. However, Goldman does maintain an active brokerage practice visiting clients in various portions of Florida and in other states in the course of his brokerage business. Due to the nature of transactions which Goldman is involved in, all of the closings are conducted in the business offices of the firms with which he does business or of their attorneys. The foregoing Findings of Fact are substantially identical to the general proposed findings submitted by Goldman.
Recommendation At hearing, the forthrightness of Mr. Goldman was evident, and it was clear that he did not desire to be uncooperative with the Commission or to flaunt its rules. His concern was that to maintain an accessible office would create more problems than it would solve. He felt that such an office would appear to be closed and "inactive", and to avoid this problem he would have to hire office staff to advise people he did not handle general real estate. This would be an unnecessary expense for him and would possibly create misunderstandings. It was, therefore, simpler to maintain his office where it has been for many years, from where, although inaccessible to the public, he centers his brokerage activity. Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that no disciplinary actions be taken. In view of Goldman's general cooperativeness and the fact that he is not totally pleased with the security of his office, it might be useful and beneficial for the Commission to examine with Goldman alternatives which would be acceptable to all concerned and would result in office accommodations which re more conventional and secure but which would not prevent a confusing picture to the public. DONE and ORDERED this 25th day of July, 1977, at Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert J. Pierce, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mary B. Steddom, Esquire O'Neill & Steddom Post Office Box 253 Ocala, Florida 32670 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, An Agency of the State of Florida, Plaintiff, vs. PROGRESS DOCKET NO. 3123 MARION COUNTY HERBERT GOLDMAN, DOAH CASE NO. 77-443 Defendant. /
Findings Of Fact 1. Adopted in Finding of Fact 10. 2-4. Rejected as Conclusions of Law and not Finding of Facts. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 6. Rejected as contra to the weight of the evidence in that Hardage, for Respondent Benchmark, arranged the joint venture which culminated in the sale. Rejected as contra to the weight of the evidence. 9-10. Adopted in Finding of Fact 6. Adopted in Findings of Fact 6 and 7. Rejected as contra to the weight of the evidence. Rejected as a Conclusion of Law and not a Finding of Fact.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the allegations against the Respondent, David W. Stuart, and the allegations of a violation of Section 475.25(1)(b), Florida Statutes, against Respondent, Benchmark Brokers of Destin, Inc., be dismissed, but that the license of Benchmark Brokers of Destin, Inc., be suspended for a period of 90 days for the violation of Section 475.25(1)(d), Florida Statutes. RECOMMENDED this 3rd day of March, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 3rd day of March, 1986. COPIES FURNISHED: Arthur Shell, Jr., Esquire Division of Real Estate Department of Professional Regulation P.O. Box 1900 Orlando, Florida 32802 David L. Selty, Esquirer Executive Park, Building H, Suite 3 11 Racetrack Road, NE Ft. Walton Beach, Florida 32548 Harold Huff, Exec. Director Division of Real Estate Department of Professional Regulation P.O. Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all Proposed Findings Of Fact submitted by the parties to this case.
The Issue The issues are whether the Petitioner lawfully revoked John Brotherton’s exemption for the repair or replacement of a dock in submerged lands and whether Respondent timely requested a hearing.
Findings Of Fact Intervenor is the successor by merger with Bankers Real Estate Investment Company. References to Intervenor shall include Bankers Real Estate Investment Company. Intervenor submitted to condominium ownership the property that, following condominium construction, has become known as Sportsman’s Riverside Townhomes Association (Sportsman’s). This property borders the Homosassa River. Subject to the legal effect of the transactions described below, Sportsman’s owns the riparian rights to the area upon which a dock owned by Respondent is located. By warranty deed dated February 1, 1984, David J. Steward acquired Sportsman’s condominium unit five. The deed contains no reference to a dock, but conveys only unit number five and an undivided share in the common element. However, by letter to Mr. Steward dated June 19, 1984, the Chairman of Bankers Real Estate Investment Corp. agreed that, in consideration of Mr. Steward’s execution of amended condominium documents, the developer “will” assign Mr. Steward more parking spaces and “[y]our boat dock will remain permanently assigned to your unit as a limited common element reserved for use by your unit.” On October 12, 1990, David J. Steward conveyed Sportsman’s condominium unit number five to Respondent. The deed conveyed “items of personal property including the private dock thereon.” On April 20, 1993, Respondent applied to Petitioner for an exemption to repair the dock that Mr. Steward had sold him. The dock had been damaged in a storm the prior month. The application includes a copy of the warranty deed to Respondent. The deed reveals that Respondent owns only a single unit of a condominium project, but the application does not name the condominium association as an adjacent property owner. Respondent checked the form on the application stating that he was the record legal owner of the “property on which the proposed project is to be undertaken.” The application states that the dock is a floating dock for the private docking of Respondent’s boat. The application reports that the dock is 128 square feet in area. By letter dated June 1, 1993, Petitioner granted Respondent the requested exemption from permitting, “[b]ased solely upon the documents submitted to the Department ” The letter adds that the exemption constitutes “authorization from the Board of Trustees Pursuant to a Memorandum of Agreement entered into on November 23, 1992.” The letter warns that Petitioner may revoke the exemption determination “if the basis for the exemption is determined to be materially incorrect . . ..” The Memorandum of Agreement dated November 23, 1992, (MOA) is between the predecessor agency to Petitioner and the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees). In the MOA, the Board of Trustees authorizes the use of state-owned submerged lands for all activities (subject to irrelevant exceptions) for which Petitioner grants exemptions from environmental resource permitting. By letter dated April 24, 1996, Petitioner informed Respondent that it had learned that Respondent had supplied “materially incorrect” information in the application submitted with the April 20, 1993, letter. The April 24 letter explains that Respondent asserted in the application that it was the record owner of the property, but the warranty deed revealed that he was not. The April 24 letter gives Respondent 21 days from receipt within which to file a petition requesting a formal administrative hearing. Respondent timely filed his request for a hearing. The facts do not establish a waiver of Respondent's right to demand a hearing. Petitioner did not rely on Respondent’s representation that he was the owner of the property on which the dock was located. The warranty deed attached to the application clearly revealed that Respondent owned only a condominium unit and undivided interest in the common element. Petitioner also knew that the state owned the submerged land at the dock.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the proceeding seeking the revocation of the exemption from the Department and consent from the Board of Trustees. ENTERED in Tallahassee, Florida, on June 10, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on June 10, 1997. COPIES FURNISHED: Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Albert E. Ford, II, Esquire Mail Station 35 3000 Commonwealth Boulevard Tallahassee, Florida 32399-3000 John Brotherton 6304 North Otis Avenue Tampa, Florida 33604 Robert G. Southey, Esquire Delano & Southey Post Office Box 15707 St. Petersburg, Florida 33701-5707 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact At all times relevant hereto, respondent, Ezell Realty, Inc., was a licensed corporate real estate broker having been issued license number 0231943 by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent, Winfield Ezell, Sr., held real estate broker's license number 0309739 issued by petitioner and was the sole qualifying broker and officer of Ezell Realty, Inc. The firm is located at 1512 West Gore Street, Orlando, Florida. Grover Crawford was an acquaintance of Ezell who was interested in purchasing certain rental property on Coretta Way in Orlando, Florida. When he was unable to purchase the property Crawford told Ezell to let him know if anything else became available in that area. Ezell happened to own a rental house at 1121 Coretta Way which he had just purchased several months earlier in a foreclosure proceeding, and the two eventually began discussions concerning a possible sale. At all times relevant thereto, the house was rented to tenants, and Crawford intended the property to remain as investor-owned property rather than owner-occupied property. Ezell initially agreed to sell the property for $70,000 and the two entered into a contract on January 8, 1983, using this sales price. However, the lender's appraisal of the residence came in far below this figure, and the parties eventually agreed on a sales price of $55,450. A second contract for sale and purchaser was executed on June 22, 1983. Although the contract provided that Crawford would pay a cash deposit of $2,300 to be held in escrow by Ezell Realty, none was paid since Ezell was given $2,300 by the tenants of the house to make needed repairs to the property prior to the sale. This arrangement was agreeable with Crawford. The contract also required the seller (Ezell) to pay all closing coats. Therefore, Crawford was not required to pay any "up front" costs in order to buy the property. Under the terms of the second contract, Crawford was to obtain FHA financing on the property in the amount of $53,150. This type of financing is the most desirable from an investor standpoint since the mortgage can be easily transferred to another buyer for a small transfer fee without lender approval. After executing the first contract on January 8, 1983, Ezell and Crawford executed an "Addendum to Contract For Sale and Purchase" on the same date which provided in pertinent part: This contract is for the sole purpose of having the buyer obtain an assumable FHA mortgage for the seller and reconveying title to the seller. The seller hereby irrevocably assumes the said FHA mortgage from the buyer immediately after closing and the buyers hereby agree to that assumption. For this, Crawford was to receive $1,000. The parties agreed that this addendum would apply to the second contract executed on June 22, 1983. At the suggestion of Ezell, Crawford made application for a $53.150 FHA loan with Residential Financial Corporation (RFC) in Maitland, Florida, a lending institution which Ezell had done business with on a number of prior occasions. However, Ezell was not present at any meetings between Crawford and RFC. When Crawford applied for the mortgage, he indicated the property would be used for investment purposes and would not be owner-occupied. For some reason, RFC assumed the property would be owner-occupied and structured the-loan in that manner. Because of this, Crawford's down payment was slightly less than 5% of the value of the property with the remainder being financed by the institution. Had RFC treated the loan as an investor-loan, the down payment would have been increased to around 15%. Neither Crawford or Ezell advised RFC of the Addendum to the contract which required Crawford to reconvey the property to Ezell for $1,000 once the FHA mortgage was obtained. Had RFC known of this it would not have approved the loan. There was no competent evidence that such an agreement was illegal or violated any federal laws or contravened any real estate industry standard or ethical consideration. The loan was eventually approved, and a closing held on September 22, 1983. After closing, Crawford retained the property in his name with Ezell making all payments from the rent proceeds. This was consistent with an oral agreement between the two that such an arrangement would last for an indefinite period as long as the payments were current. When Crawford later received several notices from the lender stating that mortgage payments were in arrears, he hired an attorney and demanded that Ezell fulfill the terms of the Addendum. He also filed a complaint against Ezell with petitioner which precipitated the instant proceeding. After the closing, Ezell had intended for the tenants to assume the mortgage since they had expressed an interest in buying the property. However, such a sale never materialized. In July, 1984, the property was reconveyed to Ezell, and Ezell paid Crawford $1,000 as required by the Addendum.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint be dismissed, with prejudice. DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1985. COPIES FURNISHED: Arthur R. Shell, Jr., Esq. P. O. Box 1900 Orlando, FL 32802 Julius L. Williams, Esq. P. O. Box 2629 Orlando, FL 32802 ================================================================ =
Findings Of Fact Petitioner, Marcus J. Brown f11ed an application for the issuance of a Class "C" license on Apr11 8, 1982 with Respondent, Department of State, Division of Licensing. That license authorizes a licensee to Perform private investigative work. After reviewing the application, Respondent denied the same on June 26, 1982 on the ground Petitioner did not possess the requisite experience required by Subsection 493.306(4), Florida Statutes, The denial Precipitated the instant proceeding. Petitioner is a licensed real estate salesman, He supports himself through his activities as a real estate salesman and "Personal business activities." Between 1979 and Apr11, 1982, Petitioner performed investigative work on three cases involving real estate transactions. The work wad performed on a Part-time basis on behalf of two attorneys and a real estate broker in the Miami area. One of the cases is st11l pending. The work involved, inter alia, interviewing witnesses, researching corporate records, and securing documents for use at trial. Petitioner had a personal interest in the outcome of all three cases, and at least one involved an effort by him to secure an unpaid real estate commission due him. He has received no compensation for his services as an investigator to date. Petitioner has no college course work related to private investigation nor has he worked as a licensed intern.
Recommendation Based on the foregoing findings of fact and conclusions of law, it RECOMMENDED that the application of Marcus J., Brown for licensure as a private investigator be DENIED. DONE and ENTERED this 6th day of December, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Bu11ding 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 F11ed with the Clerk of the Division of Administrative Hearings this 6th day of December,1982.
Findings Of Fact At all times referred to in these findings of fact, Carlson was a licensed real estate salesman having been issued License Number 0187184. The last license issued was as a salesman, c/o Pauls Real Estate and Investments, Inc., 441 East Shore Drive, Clearwater Beach, Florida 33515. From October 13, 1982, to June 28, 1983, Carlson was licensed as a real estate salesman in the employ of corporate real estate broker Alliance Real Estate, Inc. of which Nicholas G. Mastro was a qualifying broker and officer. During her employment, Carlson was employed to solicit and obtain landlords and tenants in connection with the rental property management brokerage business of Alliance Real Estate, Inc. Carlson worked out of Alliance's Clearwater Beach office, ten miles from the main office on Gulf-to-Bay Boulevard, Clearwater. Generally, Alliance's official policy was that the originals of property listings, property management agreements and rental agreements were to be maintained at the main office, with work copies filed at the Beach office. Correspondence and miscellaneous property management papers, such as invoices, frequently are maintained exclusively at the Beach office. Funds were to be deposited into, and checks were to be written out of, Alliance's operating account by Alliance's staff at the main office. However, due to the distance between the main office and the Beach office, it was inefficient and inconvenient for Carlson to follow the official policies and procedures. Instead, Carlson began using her own personal bank account as a conduit for funds flowing to and from Alliance (including brokerage fees to Alliance). She also ceased following the procedure for maintaining certain original papers at the main office and even began maintaining files at her home. Alliance knew or should have known that Carlson was using her personal bank account as a conduit for Alliance funds. Alliance's ledgers showed these transactions, and Alliance's bookkeeper wrote reimbursement checks to Carlson for some of them. Since Ronald Lohr, Alliance's qualifying broker with supervisory responsibility over the Beach office, did not testify, the evidence did not preclude the possibility that he had actual or constructive knowledge of this deviation from official policy. Regarding Carlson's maintenance of files (including original papers normally kept at the main office) at her house, Alliance did not have actual or constructive knowledge of this deviation from official policy. Rather, Alliance's minimal supervision of the Beach office gave Carlson the opportunity to deviate from that official policy without detection. Through the combined effect of these circumstances, Carlson was able to operate as a salesman for Alliance in connection with the following transactions while concealing the transactions from her employer and wrongfully retaining brokerage commissions which properly should have been paid over to Alliance. At the conclusion of these transactions (except one), Carlson "pitched" her file on it. In February, 1983, Carlson solicited and obtained $1,000.00 as rental payments from William Russ, as a tenant, for the rental of Unite 908, Clearwater Point Condominium, 830 S. Gulfview Blvd., Clearwater Beach, Florida owned by Bernhardt Elsen. In March, 1983, Carlson solicited and obtained $680 from Carl Dotterman, as a tenant, for the rental of Elsen's condominium. Notwithstanding that Carlson had received $1,680, Carlson advised Bernhardt Elsen that she had only received $1,600. Carlson disbursed $1,513.30 to Bernhardt Elsen, calculated as $1,600, minus $160 being a 10 percent management fee, plus $73.39 as reimbursement for payment of an electric bill. Carlson collected, received and disbursed the Russ and Dotterman rental money in her own name. She engaged in the Elsen rental property management activities and received compensation for the performance of real estate brokerage services all without the prior knowledge and consent of her employing broker, Alliance Real Estate, Inc., or any of its qualifying brokers. In February and March, 1983, Carlson negotiated for her son Martin Carlson, as tenant, and Dr. Rolando Perez, as owner, for the rental of Unit 207, Commodore Building, Clearwater Point Condominiums, Clearwater Beach, Florida, owned by Dr. Rolando Perez. Rent was to be $800. Carlson, for her son, paid Dr. Rolando Perez $720 calculated as $800 minus $80 being a 10 percent management fee. Carlson collected, received and disbursed the Carlson rental money in her own name. She engaged in the Perez rental property management activities and received compensation for the performance of real estate brokerage services all without the prior knowledge and consent of her employing broker, Alliance Real Estate, Inc., or any of its qualifying brokers. In April, 1983, Carlson solicited and obtained $500 as rental payment from a Mr. and Mrs. Scalise, as tenants, for the period April 9, 1983, to April 15, 1983, for the rental of Unit 701, Sailmaster Building, Clearwater Point Condominiums, Clearwater Beach, Florida, owned by Anthony and Jeanette Eman. On or about April 14, 1983, Carlson solicited and obtained a $100 rental deposit from Mr. and Mrs. Scalise for the rental of Eman's condominium for a period in 1984. On or about April 15, 1983, Carlson disbursed to Mr. and Mrs. Eman the $100 deposit and $200 of the $500 rental payment with $300 thereof being retained by Carlson as a management fee. Carlson collected, received and disbursed the Scalise rental money in her own name. She engaged in the Eman rental property management activities and received compensation for the performance of real estate brokerage services all without the prior knowledge and consent of her employing broker, Alliance Real Estate, Inc., or any of its qualifying brokers. In January and February, 1983, Carlson solicited and obtained $2,400 as rental payments from Ernest Pfau, as a tenant, for the rental of Unit 605, Shipmaster Building, Clearwater Point Condominiums, Clearwater Beach, Florida, owned by Joseph Seta. Carlson disbursed to Joseph Seta $2,160 calculated as $2,400 minus $240 being a 10 percent management fee. Carlson collected, received and disbursed the Pfau rental money in her own name. She engaged in the Eifert rental property management activities and received compensation for the performance of real estate brokerage services all without the prior knowledge and consent of her employing broker, Alliance Real Estate, Inc., or any of its qualifying brokers. On or about June 7, 1983, Carlson solicited and obtained a $100 rental deposit from Lawrence Augostino, as a tenant, for the rental of Unit 706, 450 Gulf Blvd., South Building, Clearwater Beach, Florida, owned by Dr. Donald F. Eifert. Carlson was to hold the deposit until she was able to obtain a listing on the rental property. While waiting for a listing on the Eifert property, Alliance, through Mr. Mastro, became aware of one of Carlson's "secret clients," Mr. Elsen, and confronted Carlson about it. In response to Mastro's demand, she retrieved the entire Elsen file from her home. When Mastro learned about a second "secret client," Dr. Perez, a short time later, Mastro immediately terminated Carlson from her employment on June 15, 1983. Carlson did not advise Alliance of the Augostino deposit and was not able to get a good address for Augostino to return the deposit before she left the Clearwater area to go to Michigan for a month. Carlson collected and received the Augostino deposit in her own name. She engaged in the Eifert rental property management activities without the prior knowledge and consent of her employing broker, Alliance Real Estate, Inc., or any of its qualifying brokers. As previously alluded to, Carlson produced evidence of having used her personal checking account as a conduit for funds flowing between Alliance and its customers (including brokerage fees payable to Alliance) with the actual or constructive knowledge of Lohr and Alliance's bookkeeper. But Carlson was unable to produce any similar evidence (such as Alliance's ledgers or her cancelled checks) in response to the absence of any Alliance corporate records indicating that Carlson paid any of the brokerage fees generated in the foregoing transactions over to Alliance. Carlson's self-serving and vague testimony that she did not owe Alliance any money was insufficient in this respect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order suspending respondent's license for two (2) years for violating Section 475.25(1)(b), Florida Statutes (1983). RECOMMENDED this 3rd day of July, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 3rd day of July, 1984. COPIES FURNISHED: John Huskins, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32002 Bruce M. Harlan, Esquire 110 Turner Street Clearwater, Florida 33516 Harold Huff, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
