Findings Of Fact The Petitioner, Todd T. Catlette, applied for full registration as a general securities representative. Mr. Catlette is not licensed to call or offer to sell securities in the State of Florida. The Department of Banking and Finance denied the application by letter dated January 22, 1988. Ex. 3 The application was denied based upon the following facts: On May 3, 1988, the Petitioner pleaded nolo contendere to a third degree felony, filing a false and fraudulent insurance claim, in violation of Section 817.234(1)(a), Fla. Stat., and pleaded nolo contendere to a second degree felony, second degree grand theft, in violation of Section 812.014(2)(b), Fla. Stat. He was placed on probation for one year and ordered to make restitution to the insurance company in the amount of $2,148.00. Upon failing to make restitution, his probation was extended three years. He was discharged from probation on April 28, 1987. On August 3, 1979, the Petitioner pleaded nolo contendere to sale and delivery of cocaine and possession of cocaine with the intent to sell and deliver, both second degree felonies, in violation of Section 893.03(2)(a)4, Fla. Stat. He was sentenced to two years in state prison. On November 22, 1976, the Petitioner pleaded nolo contendere to possession of less then five grams of marijuana and possession of drug paraphernalia, a first degree misdemeanor; and was placed on three months probation. After serving his sentences in state prison, the Petitioner obtained a college education. The Petitioner testified that he was innocent of the possession of marijuana offense in 1976 and innocent of the fraudulent insurance claim and theft offenses in 1985. He presented a deposition of a detective involved in the fraudulent insurance claim case which was admitted as hearsay evidence to support his assertion of innocence. It appears from the deposition and the testimony of Mr. Cutlette that the detective relied solely upon the testimony of one witness as support for the charges of false insurance claim and theft. The foregoing evidence is not sufficiently credible to prove by the preponderance of the evidence that the Petitioner was innocent of the fraudulent insurance claim and grand theft offense. When presented with an opportunity for a trail, the Petitioner pleaded nolo contendere.
Recommendation For these reasons, it is recommended that the Respondent issue its final order denying the application of Todd T. Catlette for full registration as a general securities representative. DONE AND ENTERED this 24th day of June, 1988. WILLIAM C. SHERRILL, JR. 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 24th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1161 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by parties. Findings of Fact proposed by the Petitioner: None Findings of fact proposed by the Respondent: 1. These are matters of law, and thus not appropriate as proposed findings of fact. 3.-4., 10. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. COPIES FURNISHED: Todd T. Catlette 3450 Palencia Drive, No. 1317 Tampa, Florida 22618 Reginald R. Garcia, Esquire Assistant General Counsel Office of the Comptroller Department of Banking and Finance The Capitol Tallahassee, Florida 32388-0350 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 Charles L. Stutts, Esquire General Counsel Office of the Comptroller Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350
Findings Of Fact Based on the testimony of the witnesses and their demeanor while testifying and the entire record filed herein, the following relevant facts are found. Respondent, Jerome E. Scorzelli, is licensed by the Board to practice osteopathic medicine and is the holder of license no. 3203. Documentary evidence introduced by a final order of the Board issued October 24, 1977 made findings of fact and conclusions of law to the effect that Respondent issued approximately 14 prescriptions for demerol and obtained said drug without good faith and not in the course of his professional practice within the months of August - November, 1976. That order found as a matter of law that Respondent unlawfully distributed and dispensed controlled substances as described in Chapter 893.03, F.S., and performed acts prohibited by Section 893.05, Florida Statutes, and as such violated Chapter 459.14(2)(m) and (n), Florida Statutes. In that order the Board ordered a suspension of the Respondent's license to practice osteopathic medicine in the state and all rights and privileges granted thereunder for a period of five years commencing October 15, 1977. However, the Board ruled that if Respondent satisfied five enumerated conditions the Board would hold the imposition of the suspension in abeyance as long as such conditions continued to be satisfied. If during the five year period of suspension the Board in its discretion determined that any or all such conditions stated in the order were not fully met and complied with, imposition of such suspension would immediately and automatically be imposed for the duration of the five year period of suspension. (See Petitioner's Composite Exhibit no. 2). Thereafter, on February 8, 1978, the Board issued the subject administrative complaint alleging that on November 19, 1977, in Broward County, Florida, Respondent unlawfully aided, abetted, counselled, hired, or otherwise procurred the commission of a criminal offense against the State of Florida to wit: uttering a forged or fraudulent prescription, said criminal offense being committed by Mitchell Paulson in that Mitchell Paulson did acquire or obtain or attempt to acquire or obtain possession of a controlled substance, to wit: Pethidinex (moperidine), commercially known as demerol, by misrepresentation, fraud, forgery, deception, or subterfuge, in that the said Mitchell Paulson, at the direction of Dr. Scorzelli and with Dr. Scorzelli's assistance did knowingly utter to Melvin S. Silver, a false or forged prescription contrary to Chapters 893.03(2)(b)14, 893.13(3)(a)(1) and (b), and 777.011, Florida Statutes. /1 Melvin S. Silver, a pharmacist registered in this state for approximately 16 years and the owner of Baron's Pharmacy in Broward County, testified that on November 19, 1977, a customer tendered him a prescription for two vials of demerol. Messr. Silver became suspicious of the prescription in that it appeared to be over correct since doctors usually do not write out in longhand, the drugs requested on prescriptions. For this reason, Messr. Silver checked with his delivery boy who confirmed that the address noted on the prescription was an incorrect address. The combination of these factors prompted Messr. Silver to call the doctor who he did not know and reached an answering service. He requested the answering service to contact the Respondent such that he could verify whether the prescription was issued by him. The answering service assured Messr. Silver that she would check with the doctor and have him to return the call. Within a few minutes Messr. Silver received a call from a person identifying himself as Dr. Scorzelli and advised that it was o.k. to fill the "Verdi" prescription. Messr. Silver, still not satisfied that the prescription was legitimate, again called the answering service and was assured by the person he spoke to that the service had contacted Dr. Scorzelli. Messr. Silver testified that suspicion still remained in his mind inasmuch as the person who called identifying himself as Dr. Scorzelli voice sounded young and was slurred. He called the Broward County Police and gave the description of that person who later turned out to be Mitchell Paulson who had given him the prescription. Paulson left out the side entrance and while so doing, detectives William Mattingly and James Harn, special detectives working in the organized crime and drug enforcement unit, apprehended Paulson in front of Baron's Drugs. At about the same time, they noted Dr. Scorzelli sitting outside in a Lincoln Continental who identified himself as Dr. Scorzelli. Detective Mattingly testified that, as is customary in these cases, the department attempts to verify the authenticity of such prescriptions by obtaining statements from the doctor that either his prescription pad was stolen or that the prescription was otherwise forged. Dr. Scorzelli refused to provide such a statement however he did appear with his attorney approximately three days later and signed a statement to the effect that the prescription was not authored by him. Detectives Mattingly and Harn obtained authorization from the State Attorney's office to receive the tolls for Dr. Scorzelli's mobile phone in his automobile which reveals that two calls were made from his mobile phone to his answering service and Baron's Drugs during the time frame in which Paulson was attempting to pass the prescription in Baron's Drugs. The Respondent gave a statement as to the ordeal he has undergone within the past six months and that he was in the process of filing bankruptcy since he had been unable to practice medicine for approximately six months. He testified that there were no malpractice suits filed against him and he is not a danger to the public. He confirmed that he is presently undergoing psychiatric counseling as he is obliged pursuant to the Board's final order of October 24, 1977.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Respondent's license to practice osteopathic medicine in the State of Florida be suspended for a period of 5 years. RECOMMENDED this 30th day of May, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue for disposition is whether Petitioner, Mr. Franqui, is entitled to licensure as a real estate salesperson in the State of Florida.
Findings Of Fact Jose C. Franqui, a resident of Kissimmee, Florida, was previously licensed as a real estate broker in the State of New York until 1979. When the economy and interest rates slowed real estate sales, he moved back to his native Puerto Rico. Later, he returned to live in Florida and, on March 3, 1997, he applied to the Florida Real Estate Commission for licensure as a real estate salesperson. The application, signed by an affidavit by Mr. Franqui, includes question no. 9 which inquires whether the applicant " . . . [Has] ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld. . . ." In boldface print, the question on the application form warns that the answer will be checked against local, state, and federal records and that failure to answer accurately could cause denial of licensure. Mr. Franqui answered "no" to question No.9. In 1966 in New York, Mr. Franqui was charged and convicted of carrying concealed tear gas. He was fined $200. On May 14, 1978, also in New York, after an altercation with his wife, Mr. Franqui was arrested for assault. He spent a night in jail and was released. On August 11, 1978, he pled guilty to the lesser offense of harassment and received a "conditional discharge." Neither of these incidents was disclosed by Mr. Franqui on his application for licensure. Instead, he claims he did not remember the disposition of the assault charge and that he considered the tear gas charge too remote in time to be of any consequence. The explanations do not excuse Mr. Franqui's patent disregard of the terms of the question at issue. Nor does the testimony of Mr. Umpierre, a co-worker, that ". . . Franqui is a nice, honest person . . ." obviate the fact of Mr. Franqui's falsehood.
Recommendation Based on the foregoing, it is recommended that the agency enter its final order denying Jose C. Franqui's application for licensure as a real estate salesperson. DONE AND ENTERED this 8th day of October, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1998. COPIES FURNISHED: Jose C. Franqui, pro se 3511 Bonaire Boulevard Apartment 2401 Kissimmee, Florida 34741 Manuel E. Oliver, Assistant Attorney General Department of Legal Affairs Suite 107, South Tower 400 West Robinson Street Orlando, Florida 32801 Henry M. Solares, Director Division of Real estate Department of Business and Professional regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner's application for licensure as a real estate sales associate or broker should be granted.
Findings Of Fact The Parties Petitioner, who was 49 years old at the time of the final hearing in this cause, is an applicant for licensure as a real estate sales associate or broker. Respondent Florida Real Estate Commission is authorized to certify for licensure persons who are qualified to practice as real estate brokers and sales associates in the state of Florida. Petitioner's Criminal History On April 15, 1986, Petitioner was arrested in Middleton, New York, for the charge of second degree assault. Petitioner ultimately pleaded guilty to the reduced charge of third degree assault and was ordered to pay a fine of $300. In or around June 1990, the State Attorney for Florida's Fifteenth Judicial Circuit charged Petitioner, in case number 91-239207, with one count of burglary of a dwelling (a second degree felony), three counts of grand theft (each a third degree felony), and two counts of dealing in stolen property (each a second degree felony). Subsequently, on August 14, 1991, Petitioner pleaded guilty to each of the foregoing charges and was sentenced to eight months of incarceration in the Palm Beach County jail. Approximately seven years later, the United States Attorney for the Southern District of New York indicted Petitioner for wire fraud. On July 8, 1998, Petitioner pleaded guilty to the charge and was sentenced to 30 months of imprisonment, followed by a term of probation (the exact length of which is not established in the instant record). Petitioner was also ordered to pay $745,000 in restitution to the victim(s) of his fraudulent behavior. Subsequently, in or around 2003, Petitioner——having previously completed his prison sentence——fell behind on his restitution payments, at which point the government violated his supervision. As a result, Petitioner was incarcerated for approximately 30 days until his wife's family satisfied the arrearage of $26,230.61. Although not established precisely by the testimony or exhibits, it appears that Petitioner's supervision in connection with the wire fraud charge was terminated in 2005 or 2006 and that the outstanding restitution balance of $500,000 was reduced to a civil judgment. Application for Licensure and Intent to Deny On May 16, 2011, Respondent received Petitioner's application for licensure as a real estate sales associate or broker. In the application, Petitioner properly responded "yes" to question number one, which asked, among other things, if he had ever pleaded guilty or no contest to a crime in any jurisdiction. Subsequently, on May 20, 2011, Respondent advised Petitioner in writing that it required: [T]he full details of any criminal conviction . . . including the nature of any charges, outcomes, sentences, and/or conditions imposed; the dates, name and location of the court and/or jurisdiction in which the proceeding were held or are pending . . . . (emphasis added). Nearly one month later, on June 17, 2011, Respondent received an eight-page facsimile from Petitioner, which included, in relevant part: the second page of the federal criminal judgment, a document which actually consists of six pages1/ (the other five pages are not part of the record, nor does it appear that they were provided to Respondent); the judgment and sentence in connection with the Florida burglary, grand theft, and dealing in stolen property charges; and, as quoted below, Petitioner's vague explanations of the New York assault charge, Florida offenses, federal mail fraud charge, and probation violation: [New York assault charge] Pled guilty to a fight. Fined $300. [Florida charges] [S]tems from one arrest pled guilty sentenced to 8 months jail time. There is an error in record it looks like several arrest [sic] but it was only one document provided. [Federal wire fraud charge] [A] single charge of wire fraud sentenced to 30 months ordered to pay restitution. [Federal probation violation] I was violated for being unable to keep up with restitution payments was released after paying the sum of $26230.61. On July 16, 2010, Respondent filed its Notice of Intent to Deny Petitioner's application for licensure. The intended denial was based upon the following reasons: B. Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing competent and qualified to conduct transactions and negotiations with safety to others. G. Convicted or found guilty or entered a plea of nolo contendre to, regardless of adjudication, a crime which directly relates to activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealing. M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him/her easy access to the homes, families or personal belongings of the citizens of Florida. Petitioner's Final Hearing Testimony During the final hearing, Petitioner testified that he has not been arrested since 2003——when he was violated for the restitution arrearage——and that he presently manages an automobile dealership. Regarding his criminal conduct, Petitioner offered very little detail other than a brief explanation that the wire fraud charge involved a scheme in which he ordered laptop computers but never paid for them. Notably, Petitioner expressed no remorse for his conduct, either during his hearing testimony or in the written materials submitted to Respondent during the application process. Further, and equally troubling, Petitioner conceded that he has made no payments whatsoever against the outstanding restitution judgment since 2006. With respect to the Florida burglary, dealing in stolen property, and grand theft charges (to which he pleaded guilty), Petitioner testified that he did not commit a burglary and that he only attempted to pawn items that had been stolen by somebody else——an explanation the undersigned finds dubious at best. Once again, Petitioner expressed no remorse for his criminal misdeeds.2/ As to the present state of his character, Petitioner testified that he now values——and recognizes the importance of—— honesty, a good reputation, and fair dealing. However, other than these self-serving remarks, his present employment, and the absence of any recent arrests, Petitioner offered no persuasive evidence of his honesty or character. Further, no credible evidence was adduced concerning his reputation for fair dealing. Ultimate Factual Findings The undersigned determines, as a matter of ultimate fact, that Petitioner failed to demonstrate that he is honest, trustworthy, of good character, and has a reputation for fair dealing, all of which are requirements for licensure as a real estate professional. Furthermore, the undersigned finds, as a matter of ultimate fact, that the statutory disqualification of eligibility that flows from a guilty plea to one or more crimes involving moral turpitude has not been overcome by way of subsequent good conduct and lapse of time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate or broker. DONE AND ENTERED this 20th day of January, 2012, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2012.
The Issue Whether disciplinary action should be taken against Respondent's license to practice medicine for filing false and fraudulent insurance claims and failing to make records available to patients.
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida. He holds license number ME 0039675. Respondent repeatedly filed false and fraudulent insurance claim forms on patients C.J., his wife K.J. and their children which were paid. These included claims for removal of benign lesions, a proctosigmoidoscopy and related treatment, and surgery on a perianal abscess on C.J. who never saw Dr. Patel, or any physician, for such treatment or care. False claims for care for office visits, x-rays, blood work and stress tests for K.J. were submitted. False claims for care never provided to the children were also concocted. He received payment for services and procedures that were never performed or even attempted, and to support the fraudulent insurance claims, Dr. Patel even created false operative reports. Dr. Patel wrongfully fai1ed to release patient records to C.J. and his family, when required by law to do so. The continuing nature of the false billing leads to the inference that the records were withheld in an attempt to cover up Dr. Patel`s wrongdoing.
Recommendation It is RECOMMENDED that the Respondent be found guilty of violating Sections 458.331(1)(h)(i) and (1) , Florida Statutes (1985). Due to Dr. Patel's clear and repeated pattern of fraud and deceptive practices in his medical practice, his license to practice medicine should be revoked. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day,of December, 1989. WILLIAM R. DORSEY, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1989. COPIES FURNISHED: Joseph Harrison, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Pravinkumar Patel, M.D. Post Office Box 9828 Coral Springs, Florida 33075 Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether Respondent attempted to obtain his license to practice medicine by fraudulent representations, in violation of Section 458.331(1)(a), Florida Statutes, or if Respondent misrepresented or concealed a material fact during any phase of a licensing or disciplinary process, in violation of Section 458.331(1)(gg), Florida Statutes. If so, an additional issue is what penalty the Board of Medicine should impose.
Findings Of Fact By application dated and acknowledged on December 27, 1993, Respondent applied for a medical license by endorsement. Respondent filed the application with the Board of Medicine on January 12, 1994. Question 6 on the application asks: Have you ever been convicted of a felony? Yes No ; a misdemeanor? Yes No . Have any judgments ever been entered against you? Yes No . Have you ever been sued for malpractice? Yes No . In response, Respondent typed X’s in the “No” boxes for the first two questions in Question 6. Immediately above the signature of Respondent and acknowledgement of the notary public, on the last page of the application, is the statement: I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me are true and correct. Should I furnish any false information in this application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice medicine/surgery in the State of Florida. In fact, on October 24, 1988, Respondent was found guilty, after a three-day jury trial, of 12 misdemeanor counts of failure to remit a total of over $47,000 in state sales taxes due from November 20, 1985, through December 20, 1986. On December 22, 1988, the court sentenced Respondent to pay a fine of $12,000 on all 12 counts and reasonable court costs, and serve six months’ probation on each of the 12 counts, with the periods of probation to run consecutively. Respondent’s explanation for the omission from the application is that he mistakenly believed that the only misdemeanors covered by the question were those involving the practice of medicine. Respondent’s explanation for the nondisclosure is unreasonable. Nothing in the language of Question 6 limits the scope of the inquiry to misdemeanors involving the practice of medicine. The preceding question in Question 6 asks about felonies without qualification or limitation, and it is absurd to interpret this question as not asking about any felony, such as bank robbery, even though the felony did not involve the practice of medicine. For the same reason, Respondent knew that he was to have disclosed any misdemeanor, even if it did not involve the practice of medicine. Respondent’s explanation for the commission of the crimes is more plausible. Briefly, Respondent testified that he had invested about $100,000 of the total of $250,000 in the acquisition of the Philadelphia franchise of long-distance telephone provider that had emerged immediately following the breakup of AT&T in the mid 1980s. Essentially reselling AT&T long-distance services, the new company paid AT&T at wholesale for the services that it marked up and sold at retail to end users. Respondent explained that he had been an absentee owner for much of the time. Also, the AT&T billing for this new arrangement was confused and irregular. Changes in ownership preceding and following Respondent’s investment in the company further complicated the situation. A Pennsylvania revenue auditor contacted Respondent over a year after he had sold his stock in the company in 1986, gotten married, and been traveling extensively out of state. At this time, Respondent learned of the company’s sales tax problems, which involved a complicated telecommunications excise tax. Respondent’s corporate purchaser was no longer operating the company, which had become bankrupt. Respondent paid the taxes due, but the Commonwealth of Pennsylvania nevertheless prosecuted him for his role in the failure of the company to pay its taxes. After sentencing, Respondent paid the fine and served his probation without incident. He disclosed the misdemeanor convictions to the Pennsylvania agency regulating the practice of medicine and was able to continue practicing medicine there. After consideration of Respondent’s application, the Florida Board of Medicine issued Respondent license number ME 0066606.
Recommendation It is RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 4th day of December, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2000. COPIES FURNISHED: Tanya Willaims, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Bin C03 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Kim M. Kluck Carol Gregg Senior Attorneys Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Christopher Grillo 1 East Broward Boulevard, Suite 700 Fort Lauderdale, Florida 33301
The Issue Whether respondent's license as a real estate salesman should be revoked or otherwise disciplined on the ground that she is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, culpable negligence, and breach of trust in a business transaction in violation of Section 475.25(1) (b), Florida Statutes (1979).
Findings Of Fact At all times material to the charges, respondent Margaret Perry was a licensed Florida real estate salesman holding license No. 0147966. Her business address is Key Place Realty, 513 West Vine Street, Kissimmee, Florida. (Stipulation of Parties.) I. The Offer On December 12 and 13, 1980, Perry W. Ripple, Jr., and Carol C. Ripple, his wife, signed a contract to purchase a 5-acre tract, with residence, located on Hickory Tree Road, Osceola County, Florida. The contract was prepared by respondent, who had previously shown the property to the Ripples. (Testimony of Perry, P. Ripple, C. Ripple; Joint Exhibit No. 1.) On Saturday, December 13, 1980, the contract constituted only a written offer to purchase the property since Novie P. Cleveland and Pamela A. Cleveland- -the owners of the property--had not yet accepted the offer by signing the contract. Pursuant to the contract, the offer was accompanied by a $1,000 earnest money deposit and an assignment of a certificate of deposit. (Testimony of P. Ripple, Perry.) On Saturday, December 13, 1980, when respondent received the signed offer, with earnest money deposit and certificate of deposit assignment, she mailed a copy to the American Title Insurance Company and ordered title insurance. Before mailing the contract offer to the title insurance company, she typed two dates above the contract signature lines: "December 13, 1980" as the date it was signed by the buyers; 3/ and "December 15, 1980" as the date it would be signed by the sellers (the sellers had not yet signed the contract; she inserted December 15, 1980, in anticipation of their signing on that date). She used December 15, 1980, because, under the terms of the contract, that was the last day the offer could be accepted by the sellers. (Testimony of Perry, Carlyon; P-1.) II. The Acceptance At approximately 6:00 p.m. on Sunday, December 14, 1980, respondent telephoned the sellers, Novie P. and Pamela A. Cleveland, and arranged for them to meet her at Mr. Cleveland's office and accept the offer by signing the contract. Respondent expedited the signing of the contract because the Ripples were in a hurry to close the transaction. (Testimony of N. Cleveland, P. Cleveland, Perry.) A few minutes later, the Clevelands met respondent at the designated place and signed the contract. Although they signed the contract on December 14, 1980, respondent inadvertently failed to correct the December 15, 1980, date which she had earlier placed in the contract as the date of execution by the sellers. (Testimony of Perry, N. Cleveland, P. Cleveland; Joint Exhibit No. 1.) III. Buyers' Attempt to Withdraw Offer Later on that evening--between 8:00 p.m. and 9:00 p.m. on December 14, 1980--Mr. Ripple telephoned respondent at her home. He questioned her about the boundaries and size of the property and, for reasons not material here, told her that he no longer wanted to buy the property, that he wanted the earnest money deposit returned. The conversation was abrupt and heated; both parties became upset with each other. The subject of whether the contract had been accepted and signed by the sellers was not mentioned. (Testimony of Perry, C. Ripple, P. Ripple.) The critical dispute in this case is the time of Mr. Ripple's telephone call to respondent. The Ripples testified it was between 5 p.m. and 6 p.m.; respondent testified it was between 8 p.m. and 9 p.m. If the Ripples' testimony is accepted, then respondent presented an offer to the sellers for acceptance after the buyers had told her they wanted to withdraw the offer and not proceed with the contract; this is the essence of respondent's alleged misconduct. If respondent's testimony is accepted, the buyers did not notify her that they wanted to withdraw their offer until after the offer was accepted by the sellers; under such circumstances, her conduct was clearly proper. Respondent's testimony on the timing of the Ripples' telephone call is accepted as persuasive; (see paragraph 7 above) the Ripples' testimony concerning the time of the call is rejected. In earlier testimony, Mr. Ripple's memory of the events in question was shown to be unreliable: [Respondent's Counsel] Q: You say you signed the contract on December the 13th, on a Saturday. [Mr. Ripple] A: Yes. Q: Isn't it true that you signed the contract at the Sun Bank in St. Cloud on Friday, December 12th, on the hood of your car or Marge's car? That's possible, yes. Q: So you were mistaken when you said you signed it on Saturday. A: Yes, I was. I probably was. (Tr. 23.) More importantly, if the Ripples' testimony is correct, respondent deliberately presented an offer for acceptance which the purchasers no longer wished to make. Assuming such conduct occurred, it is inconceivable that she would inadvertently fail to correct the date on the contract to indicate that the sellers signed on December 14, 1980 (the same day the Ripples attempted to withdraw), not December 15, 1980. The events occurred close together and timing was critical. By not changing the date, she allowed the contract to incorrectly reflect that the sellers signed the contract a day later than they actually did: the time between the buyers' attempt to withdraw and the sellers' acceptance becomes greater than it was and even more difficult for her to explain. In short, her failure to correct the date of the sellers' signing of the contract is not a mistake she would have made if, as the Department alleges, she knowingly presented an offer and completed a contract against the expressed wishes of the buyers. IV. No Damage to Parties Involved On Monday, December 15, 1980, the Ripples stopped payment on their earnest money deposit check. The sellers did not pursue any legal rights or remedies they may have had against the Ripples. Eventually, the property in question was sold to another party. There is no evidence that the Ripples or Clevelands were financially harmed as a result of the events in question. (Testimony of Perry, C. Ripple, P. Ripple, N. Cleveland.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department's administrative complaint dated October 20, 1981, be dismissed. DONE AND RECOMMENDED this 26th day of March, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1982.
The Issue Respondents' alleged violation of subsection 475.25(1)(a), 475.25(1)(c), and 475.25(3), Florida Statutes, as set forth in the Administrative Complaint. Inasmuch as Respondents were not represented by legal counsel at the hearing, the Hearing Officer explained their rights in administrative proceedings to James F. Catron who elected to represent himself and Cooke Catron Realty, Inc.
Findings Of Fact Cooke Catron Realty, Inc. is now and was at all times alleged in the Administrative Complaint a corporation registered as a real estate broker doing business at 5805 Margate Boulevard, Margate, Florida. Respondent James F. Catron is now and was at all times alleged in the Administrative Complaint a registered real estate broker and the active broker and officer of Cooke Catron Realty, Inc. (Stipulation) In January, 1976, Richard H. Goodwin, Jr. and Christine S. Goodwin, his wife, owned a four-unit apartment building at 7650 Southwest 10th Court, North Lauderdale, Florida, described as Lot 7, Block 13, Lauderdale North Park, Section 3. The Goodwins were having marital difficulties and decided to separate at this time and divest themselves of mutually-owned property. In a conversation with a salesman for respondents, Mr. Goodwin learned that James F. Catron was in the business of purchasing investment properties and reselling the same whereupon he would divide any profit with the former owner. Goodwin thereafter entered into negotiations with Catron for the sale of the apartment building. It was orally agreed that Catron would pay $62,700.00 for the property with a $1,000.00 down payment, and assume a first mortgage with Southern Federal Savings and Loan Association of Broward County in the amount of approximately $57,400.00 and a second mortgage with Seacrest Homes, Inc., John E. Abdo, Trustee, in the approximate amount of $5,300.00. It was further agreed that Catron would pay the Goodwins 30 percent of 80 percent of any net profit realized when he resold the property. As a consequence of this agreement, the Goodwins, on January 19, 1976, executed a deposit receipt contract embodying the above terms except that it recited the receipt of $10.00 as a deposit rather than $1,000.00, and made no mention of assumption of the mortgages. However, the sum of $1,000.00 was paid to the Goodwins by Catron. Although Mr. Goodwin testified that Catron signed this contract, Catron denied it and no such contract signed by Catron was placed in evidence at the hearing. (Testimony of R. Goodwin, C. Goodwin, Catron, Petitioner's exhibit 1) Mr. Goodwin, on January 19, 1976, executed a document authorizing Cooke Catron Realty, Inc. to collect rents from the tenants of the apartment building. Catron, anticipating consummation of the purchase, proceeded to collect rentals in the amount of approximately $800.00 per month for the next four and one-half months, for total collections of approximately $3,600.00. He also made some repairs to the property and paid utilities bills. The Goodwins believed that he would take steps to assume the two mortgages on the property and take over the payments thereon. Although Mr. Goodwin testified that he and his wife had executed a warranty deed and delivered it to Catron, Catron denied receipt of such a deed and it was not produced at the hearing. Accordingly, it cannot be found that such a deed was in fact executed and delivered. The rents were collected by a limited partnership called Forest Run, Limited, of which Catron was a partner. Although the February payments were made on the mortgages, they were discontinued when Catron discovered that he could not assume the second mortgage from Seacrest Homes, Inc. without payment of $1,000.00 to the trustee, Abdo. As a consequence, the Goodwins filed suit against the respondents in the Broward County Circuit Court on June 23, 1976, requesting that any agreements concerning the property be rescinded, and that an accounting be ordered and a receiver appointed to administer and manage the property in question. A receiver was appointed by the court. Thereafter, in August 1976, Southern Federal Savings and Loan Association filed suit to foreclose its mortgage on the property and obtained summary judgment in the Broward County Circuit Court on January 25, 1977. The property was thereafter sold at public sale and bought in by Southern Federal. On January 25, 1977, the suit of the Goodwins against respondents was dismissed by stipulation after the parties had reached an amicable settlement in the matter. (Testimony of R. Goodwin, C. Goodwin, Petitioner's Exhibits 2-4)
Recommendation That the charges against the respondents, James F. Catron and Cooke Catron Realty, Inc., be dismissed. DONE and ENTERED this 26th day of October, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 James F. Catron and Cooke Catron Realty, Inc. 5805 Margate Boulevard Margate, Florida 33063
