The Issue Whether Respondent, a licensed real estate salesman, is guilty, as charged, of fraud, misrepresentation, culpable negligence or breach of trust in violation of Section 475.25(1)(b), Florida Statutes.
Findings Of Fact I. At all times material to the charges, Respondent was a licensed Florida real estate salesman associated with Woodlake Realty, Inc., in Melbourne, Florida. He obtained his real estate salesman's license in 1982. On March 14, 1985, became a licensed real estate broker and now operates his own business under the name of Peter Frontiero Realty. His office is located in his residence at 3247 West New Haven Avenue, Melbourne, Florida. II. On or about April 7, 1983, while employed as a real estate salesman at Apollo Realty, Inc., Mary E. Sousa obtained a listing on a tract of land owned by John and Janet Biansco. In connection with the listing, an Exclusive Right of Sale Contract was executed. This contract contained the following legal description of the tract to be sold: Parcel of land lying in the County of Brevard in the southwest 1/4 of Sec 11, TW 28 South Range 36E more particularly described as follows: S 2/3 of the following tract: commence at SE corner of W 1/2 of Sec 11 TW 28 South Range 36E, thence along south line of said Sec 11, 589-54-14 West for 30 feet., thence north 1- 17-00E for [sic] 43 feet to the point of beginning thence south 89-54-14 west along the north R/W line Melbourne Tillman Drainage district canal #63 for 297.43 feet, thence north 1-15-49 east for 353 feet, thence north 89-54-14 east for 297.55 feet, to the west R/W line of Arizona Street; thence south 1 17-00 West along R/W line for 353.00 feet, to the point of beginning. (P-4, Admissions No. 5, 6) As so described, this tract of land measures 235.34' x 297.47' and contains approximately 1.61 acres. (Admission No. 7) Mary E. Sousa and her broker, Peter Sergis, however, incorrectly determined that the legal description described a tract of land measuring 297' x 353' feet, containing 2.4 acres. (They determined this by examining the legal description attached to the Listing Contract and relying on Mr. Biansco's representation that the tract contained 2.4 acres.) Mary E. Sousa then had the property listed in the Melbourne Multiple Listing Service (MLS) on or about April 26, 1983. The MLS listing reflected the incorrect measurements and size of the tract, as submitted by Ms. Sousa. (P-3, Admission No. 8) III. During May, 1983, Karen Dunn-Frehsee and Paul Winkler (her fiance), contacted Respondents, a real estate salesman associated with Woodlake Realty, Inc., about purchasing a home. After Respondent showed them a house they were interested in, Ms. Dunn-Frehsee and Mr. Winkler decided that what they really wanted was to buy land on which they could build a residence. They told Respondent that they would need a minimum of two acres since they had two horses: local zoning requirements required at least one acre of land per horse. (Admission No. 10, Testimony of Dunn-Frehsee) Respondent checked MLS and found the listing (containing the incorrect measurements and size) of the Biansco property. He showed the land to Ms. Dunn- Frehsee and Mr. Winkler, who liked it and decided to make an offer. (At that time, Respondent was unaware that the MLS listing erroneously described the tract to be 297' x 353', containing 2.4 acres, when in fact it was 297.47' x 235.34', containing approximately 1.61 acres.) On or about May 5, 1983, Respondent prepared a "Contract for Sale and Purchase" containing the offer of Ms. Dunn-Frehsee. After she signed it, it was presented to the Bianscos, who subsequently accepted it. (Admission No. 12, P- 1) The Contract for Sale and Purchase contained, on the attached addendum--a correct legal description of the tracts as the description was taken from the listing agreement, not the erroneous MLS listing. Prior to closing, Respondent contacted Ms. Dunn-Frehsee several times to advise her regarding efforts being made by Lawyers Title Insurance Company to locate the prior owner of the property and secure a quitclaim deed covering a 30-foot strip of land bordering Arizona Street on the east side of the property. He was still unaware of the discrepancy between dimensions of the property contained on the MLS listing and the Contract of Sale. He did not tell Ms. Dunn-Frehsee that he had personally measured the property, or that he had confirmed the accuracy of the listing information. He was concerned only with the problem of obtaining access to the property through the 30-foot strip bordering Arizona Street. Although he told Ms. Dunn-Frehsee that he thought she was getting 2.7 or 3.0 acres by virtue of the additional strip of land which was to be quitclaimed to her at no additional cost, this belief was based on his reasonable assumption that the original tract contained 2.4 acres, as represented by the listing agents (Mary Sousa and Peter Sergis of Apollo Realty) and reflected in the Multiple Listing Book. Respondent also contacted Mr. Winkler, but similarly, did not represent to him that he (Respondent) had personally measured the property or confirmed the MLS information. (Testimony of Respondent) Prior to the closing, Respondent discussed with Ms. Dunn-Frehsee the need to order a survey of the property. She then ordered a survey, which was completed a week and a half before closing. After picking it up, Respondent telephoned Ms. Dunn-Frehsee. There is conflicting testimony about the conversation which ensued. Respondent testifies that he telephoned her and asked if she would like him to deliver the survey to her house or mail it to her, or if she would like to pick it up at his office. (TR-30) Ms. Dunn- Frehsee, on the other hand, testified that Respondent telephoned her stating that he had looked the survey over and there was no reason for her to drive out to his office to pick it up, that he would bring it to the closing. (TR-48) Neither version is more plausible or believable than the other. Both Respondent and Ms. Dunn-Frehsee have a discernible bias: Respondent faces charges which could result in the revocation of his professional license; Ms. Dunn-Frehsee has sued Respondent for damages resulting from her purchase of a tract of land which was smaller than what she was led to believe. Since the burden of proof lies with the Departments, the conflicting testimony is resolved in Respondent's favor as it has not been shown with any reliable degree of certainty that Respondent told Ms. Dunn-Frehsee that he had looked the survey over and that there was no need for her to examine it before closing. Both witnesses agree, however, and it is affirmatively found that Ms. Dunn-Frehsee agreed that Respondent should bring the survey with him to the closing, which was imminent. The surveys prepared by Hugh Smith, a registered land surveyors correctly showed the property to be approximately 235.33' x 297.43', but did not indicate the size by acreage. (Admission No. 20, P-2) At closings on or about June 23, 1983, Respondent showed the survey to Ms. Dunn-Frehsee. Ms. Dunn- Frehsee questioned the measurements as not being the same as she recalled being on the MLS listing. Neither Ms. Sousa nor Respondent, both of whom were in attendance, had a copy of the MLS listing so that the measurements on the two documents were not compared. (Admission No. 22-23) Ms. Dunn-Frehsee chose to close the transaction anyway after her questions regarding the property were apparently resolved to her satisfaction by Kathleen Van Mier, the agent for Lawyers Title Insurance Company which was handling the closing. Ms. Dunn-Frehsee signed a contingency statement indicating that all contract contingencies had been satisfied and that she wished to proceed with the closing. (TR-4O-41; 77-78) Respondent was misinformed regarding the dimensions and size of the property by the listing agents, Mary Sousa and Peter Sergis of Apollo Realty, who had provided inaccurate information to the Multiple Listing Service. Respondent reasonably relied upon the listing information and the representations of the listing agents concerning the size of the property. In his discussions with Ms. Dunn-Frehsee and Mr. Winkler, he drew reasonable inferences from such (incorrect) representations. He did not intentionally mislead anyone. It has not been shown that, under the circumstances, he failed to exercise due care or that degree of care required of a licensed real estate salesman. Nor has it been shown that he violated any professional standard of care adhered to by real estate salesmen and established by qualified expert testimony at hearing.
Recommendation Based on the foregoing it is RECOMMENDED: That the administrative complaint, and all charges against Respondent be DISMISSED for failure of proof. DONE and ORDERED this 11th day of October, 1985, 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 11th day of October, 1985.
Findings Of Fact The Respondent, Llera Realty, Inc., is a corporate real estate broker, and J.M. Llera is the active real estate broker in that corporation. Llera Realty, Inc., and J.M. Llera represented the buyers in the negotiations for purchase and sale of the subject real property. Coral Realty Corporation is a corporate real estate broker, and Alberto E. Trelles is the active real estate broker with that corporation. Coral Realty Corporation and Alberto Trelles represented the seller in the negotiations for purchasee and sale of the subject property. The property in question was owned by Saul Lerner, who was represented in these negotiations by Julius Friedman, attorney at law. The purchasers were Messrs. Delgado, Salazar and Espino, who are officers of Inter-America Housing Corp., said corporation eventually being the purchaser of the subject property. Lerner made an oral open listing on a piece of real property which included the subject property. Trelles, learning of the open listing, advertised the property to various brokers. Llera was made aware of the availability of the property through Trelles' ad and presented the property to Delgado, Salazar and Espino. Lengthy negotiations followed during which various offers were tendered by the buyers through Llera to Trelles to Friedman in Lerner's behalf. These offers were rejected. Eventually, negotiations centered on a segment of the property, and an offer was made by the buyers for $375,000 on this 7.5-acre tract. This offer was made through Llera to Trelles to Friedman, and was also rejected by Lerner. The buyers then asked to negotiate directly with the seller and agreed to pay a ten percent commission to the brokers in the event of a sale. The buyers then negotiated with the seller and eventually reached a sales price of $410,000 net to the seller for the 7.5 acres which had been the subject of the preceding offer. Buyers executed a Hold Harmless Agreement with the seller for any commission that might become due, agreeing to assume all responsibility for such commissions. The buyers through their corporation, Inter-America Housing Corp., purchased the property and refused to pay commissions on the sale and purchase. Thereafter, the Respondents brought suit against the buyers and their corporation. The Respondent's suit alleges the facts stated above in greater detail and asserts that the buyers took the Respondent's commission money to which they were entitled under the oral agreement with the buyers and used this money to purchase a portion of the property. The Respondents asked the court to declare them entitled to a commission and declare an equitable lien in their behalf on a portion of the subject property together with punitive damages. In conjunction with this suit, counsel for the Respondents filed a Notice of Lis Pendens. The Respondents questioned the propriety of this in light of Section 475.42(1)(j), Florida Statutes, and were advised by their counsel that the filing of Lis Pendens in this case was proper. The court subsequently struck the Lis Pendens on motion of the defendant buyers; however, the court refused to strike the portion of the complaint asserting the right to and requesting an equitable lien in behalf of the Respondents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that no action be taken against the real estate licenses of the Respondents. DONE AND ORDERED this 29th day of March, 1979, in Tallahassee, Leon County, Florida, STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Harold E. Scherr, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Peter M. Lopez, Esquire 202 Roberts Building 28 West Flagler Street Miami, Florida 33130 ================================================================= DISTRICT COURT OPINION ================================================================= NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF LLERA REALTY, INC., J. M. IN THE DISTRICT COURT OF APPEAL LLERA, CORAL REALTY CORP. OF FLORIDA and ALBERTO TRELLES, THIRD DISTRICT JANUARY TERM, A.D. 1980 Appellants, vs. BOARD OF REAL ESTATE (formerly Florida Real Estate Commission), Appellee. / Opinion filed July 1, 1980. An Appeal from the Board of Real Estate. Lopez & Harris and Peter M. Lopez, for appellants. Howard Hadley and Kenneth M. Meer and Salvatore A. Cappino, for appellee. Before NESBITT, PEARSON, DANIEL, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge. PEARSON, TILLMAN, (Ret.), Associate Judge. This appeal by respondents Llera Realty, Inc., J.M. Llera, Coral Realty Corp. and Alberto Trelles is brought to review the administrative decision of the Florida Real Estate Commission (now known as the Board of Real Estate), which suspended the licenses of the respondents for thirty days. The complaint filed by the Commission charge that the respondents had violated Section 475.42(l)(j), Florida Statutes (1977), by filing a notice of lis pendens on real estate in a court action brought to recover a real estate commission. 1/ The hearing officer entered a recommended order finding that the respondents had, in fact, recorded a lis pendens on real estate in order to collect the commission, and concluding that as a matter of law, the cited section was unconstitutional as applied in this case because "[o]n its face and without such limitations, the statute has a chilling effect on the right of the broker or salesman to seek redress in the courts because persons subject to the statute may have their license revoked or suspended and be prosecuted criminally." The commission rejected that portion of the hearing officer's conclusions of law which held the application of the statute to the respondents to be unconstitutional and, accordingly, the respondents were found guilty and their licenses suspended for thirty days. We affirm. The only substantial question argued in this court is whether the classification by the statute of real estate brokers and salesmen as a class of person who may not use the filing of a lis pendens in connection with a civil lawsuit filed in order to collect a real estate commission is a classification so unreasonable because real estate brokers and salesmen are privileged by the statutory law of this state in the collection of commissions. Section 475.41, Florida Statutes (1977), in effect, provides that only a real estate broker who is properly registered". . . at the time the act or service was performed "may maintain a court action for the collection of a commission for the sale of real estate. As stated in Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 425 (1927), with regard to the real estate business, "No business known to modern society has a longer or more respectable history." In this regard, the statutory law of this state demands a high standard of those engaging in the real estate business. Section 475.17 et seq., Florida Statutes (1977), through the onus of revocation or suspension of registration, demands an exemplary level of behavior within the profession; Section 475.42, Florida Statutes (1977), enumerates various violations and the consequent penalties to be exacted against those who are not properly registered; and Sections 475.482 et seq., by creating the Florida Real Estate Recovery Fund to reimburse persons who have suffered monetary damages at the hands of those registered under this chapter, demonstrate this state's recognition of the sensitive and privileged position of those engaged in real estate to the public at large. Furthermore, it is well- established by the case law of this state that real estate brokers and salesmen occupy a position of confidence toward the public. See the discussion in Foulk v. Florida Real Estate Commission, 113 So. 2d 714, 717 (Fla. 2d DCA 1959). And see Gabel v. Kilgore, 157 Fla. 420, 26 So.2d 166 (1946); and Ahern v. Florida Real Estate Commission ex rel. O'Kelley, 149 Fla. 706, 6 So.2d 857 (1942). The work of real estate brokers and salesmen is intimately connected with the transfer of title to real estate. It is natural that their experience and knowledge in such matters should be greater than that of the people they serve in their profession. The denial to this privileged group of the availability of a lis pendens when used to collect a commission on the sale of the same real estate on which they have secured, or have attempted to secure, the transfer of title is not the denial of a right of access to the courts. It is simply the denial of a special tool which might be misused by some members of his privileged group to the disadvantage of the public. Finding no error, we affirm the administrative decision.
The Issue The issues in this case are whether the respondents, Dorothea L. Prisament and Warricks Real Estate , Inc., should be disciplined on charges filed in a six-count Administrative Complaint, three counts for each respondent, and alleging that the respondents: (1) were culpably negligent in allowing their escrow account to have a negative balance, in violation of Section 475.25(1)(b), Florida Statutes (1989); (2) failed to maintain trust funds in a properly maintained escrow account, in violation of Section 475.25(1)(k), Florida Statutes (1989); and (3) failed to maintain a proper office sign, in violation of F.A.C. Rule 21V-10.024 and Sections 475.25(1)(e) and 475.22, Florida Statutes (1989).
Findings Of Fact Dorothea L. Prisament and Warricks Real Estate, Inc., are now, and were at all times material hereto, licensed as real estate brokers in the State of Florida. Dorothea L. Prisament was the active real estate broker for the corporate broker, Warricks Real Estate. On or about August 16, 1989, investigator Marjorie G. May conducted an office inspection and audit of the escrow accounts of the respondents. Ms. May also reviewed the outer office of the respondents. The entrance sign did not have the name of Dorothea L. Prisament on it; however, the sign did have Warricks Real Estate correctly identified and identified as a licensed real estate broker. Ms. May advised Ms. Prisament of the fact that Ms. Prisament's name needed to be on the sign and identified as a real estate broker. Ms. Prisament had a new sign made which fully complies with the statutes and rules. There was no evidence introduced at hearing to show that the escrow account of the respondents had a shortage in any amount; directly to the contrary, both the Department of Professional Regulation investigator and Ms. Prisament agreed that there was no shortage in the account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and in light of the fact both that the respondents' violation was a very minor and technical one which was immediately corrected and that the respondents had to undergo the costs of defense of this case and suffer the mental duress of defending this case, it is recommended that the Florida Real Estate Commission enter a final order dismissing Counts I through IV of the Administrative Complaint and reprimanding the respondents for a minor and technical violation under Counts V and VI. RECOMMENDED this 20th day of July, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1990. COPIES FURNISHED: Janine A. Bamping, Esquire Department of Professional Regulation, Division of Real Estate Post Office Box 1900 400 West Robinson Street Orlando, Florida 32801 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Darlene F. Keller Director, Division of Real Estate 400 West Robinson street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
The Issue The issue in this case is whether the Respondent, German H. Rodriguez, committed the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating and disciplining real estate licensees in the State of Florida. At all times material to the allegations of this case, Respondent has been licensed as a real estate broker, license number 0434907. On March 20, 1995, Respondent submitted a license renewal form to the Petitioner which resulted in the automatic issuance of a renewed license for two years, ending March 31, 1997. The license renewal form provided, in pertinent part: I hereby affirm that I have met all of the requirements for license renewal set forth by the Department of Business and Professional Regulation and/or the professional regulatory board indicated on the reverse side of this notice. I understand that, within the upcoming licensure period, if my license number is selected for audit by the Department and/or professional regulatory board, I may be required to submit proof that I have met all applicable license renewal requirements. I understand that proof may be required by the Department of Business and Professional Regulation and/or professional regulatory board at any time and that it is my responsibility to maintain all documentation supporting my affirmation of eligibility for license renewal. I further understand that failure to comply with such requirements is in violation of the rules and statutes governing my profession and subjects me to possible disciplinary action and, further, that any false statements herein is in violation of section 455.227 Florida Statutes, subjecting me to disciplinary action as well as those penalties provided below. I affirm that these statements are true and correct and recognize that providing false information may result in disciplinary action on my license and/or criminal prosecution as provided in section 455.2275, Florida Statutes. When Respondent executed the renewal form he did not have documentation supporting his eligibility for license renewal. Specifically, Respondent did not have a course report documenting completion of the required 14 hour continuing education course. The course report that Respondent later received from an approved real estate school noted that Respondent had started the course June 1, 1995, and had finished it June 26, 1995. Respondent knew that the 14 hour continuing education course was required by the Department for license renewal. Further, Respondent knew that the course was to be completed before the renewal came due. Respondent maintains that he intended to complete the course before the renewal because he had, in fact, requested a correspondence course from an approved real estate school, had completed the course work, and had filled out the answer sheet. Unfortunately, according to Respondent, the envelope was misplaced and he failed to timely mail the answer form to the company for scoring. Therefore, Respondent did not get credit for the work until June, 1995, when he completed the work again. As chance would have it, Respondent was selected for audit in August, 1995. By this time he had completed the continuing education course work as required by the Department for license renewal but, as indicated above, did so after the renewal form had been submitted. In response to the audit, Respondent represented that he had completed the work prior to renewal but, through inadvertence, had not gotten the course credit until after the renewal period. Respondent did not successfully complete 14 hours of continuing education prior to submitting the renewal form. Respondent has been a licensed real estate broker for ten years during which time he has never been disciplined. At the time of the renewal, Respondent was not using his real estate license and was in an inactive status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent violated Section 475.25(1)(m), Florida Statutes, and imposing a reprimand with an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 9th day of April, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1997. COPIES FURNISHED: Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Christine M. Ryall, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Tallahassee, Florida 32802 Frederick H. Wilsen, Esquire Gillis & Wilsen 1415 East Robinson Street, Suite B Orlando, Florida 32801 German H. Rodriguez 703 Southwest 89th Avenue Plantation, Florida 33324
The Issue The issues are whether Respondent is guilty of failing to account for and deliver a share of a real estate commission, as required by Section 475.25(1)(d)1., Florida Statutes, and, if, so, what penalty should be imposed.
Findings Of Fact At all material times, Petitioner has been a licensed real estate broker, holding license number 0314643. Petitioner does business under the name, Blue Ribbon Realty. Petitioner employs several real estate salesmen in her brokerage business. Virginia M. Poole is a licensed real estate salesman. During 1988, she was looking for a house to buy. At the time, she was working in a hotel as a cashier. While working at the hotel, Ms. Poole met Mary Asian, who was also working at the hotel. At the same time, Ms. Asian was and remains a real estate salesman working at Blue Ribbon Realty. In a period of several weeks, Ms. Asian showed Ms. Poole several houses and presented at least one offer with a small deposit. One day while driving on her own, Ms. Poole came across a house that appealed to her. At or prior to this time, Ms. Poole had placed her salesman's license with Blue Ribbon Realty. Ms. Poole negotiated a sales contract with the seller. The contract was signed by Ms. Poole and the seller on November 10, 1988. By a separate commission agreement signed the same date, the seller agreed to pay Respondent a commission equal to 3% of the sales price. The closing took place on December 14, 1988. The closing agent duly paid Respondent the sum of $2172, which represents 3% of the purchase price. Respondent cashed the check and received the proceeds thereof. Under the agreement between Ms. Poole and Respondent, Ms. Poole was to be paid one-half of all commissions that she earned for Blue Ribbon Realty. At the closing, Ms. Poole asked about her share of the commission. Refusing to pay anything to Ms. Poole, Respondent told her, "You get it any way you can." Respondent believed that Ms. Asian, not Ms. Poole, was due the salesman's share of the commission, which by agreement was one-half of the sum paid to Blue Ribbon Realty. Ms. Poole, who never listed or sold any properties for the two or three months that her license was placed with Respondent, had placed her license with another broker over ten days in advance of the December 14 closing. Under the agreement between Respondent and her salesmen, no commission was due any salesman who left Blue Ribbon Realty more than ten days prior to a closing. The reason for this policy was that much work had to be done in the ten days preceding a closing, and it was unfair to require others to perform the work while paying the salesman's share of the commission to a departed salesman. After repeated attempts to obtain payment of the $1086 due her, Ms. Poole filed a legal action against Respondent in Orange County Court. The defenses raised by Respondent apparently proved unavailing. On April 12, 1989, Ms. Poole received a final judgment in the total amount of $1197.44, including interest and costs. Although the filing date does not appear from the face of the exhibit, a Notice of Appeal was served on Ms. Poole on June 30, 1989. Subsequent attempts to recover on the judgment were unsuccessful. At this point, Ms. Poole filed a complaint with Petitioner. Respondent never requested the Florida Real Estate Commission to issue an escrow disbursement order determining who was entitled to the disputed half of the commission, never sought an adjudication of the dispute by court through interpleader or other procedure, and never submitted the matter to arbitration with the consent of the parties. The only thing that Respondent has done in this regard is to deposit the contested sum in the trust account of her attorney, apparently pending the resolution of the appeal.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of failing to account or deliver a share of a commission to one of her salesmen, issuing a written reprimand, and imposing an administrative fine in the amount of $1000. ENTERED this 23 day of May, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23 day of May, 1990. COPIES FURNISHED: Steven W. Johnson, Senior Attorney Division of Real Estate P.O. Box 1900 Orlando, FL 32802 Attorney Raymond O. Bodiford P.O. Box 1748 Orlando, FL 32802 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, as amended, and, if so, what penalties should be imposed.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is a state agency. It is responsible for administering and enforcing the provisions of Chapter 475, Part II, Florida Statutes. Respondent is now, and has been since June 1, 1996, a Florida-certified residential real estate appraiser (holding certificate number RD 0002087 issued by Petitioner). 3/ At no time during the period of his certification has he had any disciplinary action taken against his certificate. At all times material to the instant case, Steve Mohan was the owner of the following income-producing properties: attached "twin homes" located at 3976 and 3978 West Roan Court, Lake Worth, Florida; and a triplex located at 517 South F Street, Lake Worth, Florida (Subject Properties). In or about March of 1998, Mr. Mohan approached Brett Matchton, a mortgage broker, to inquire about refinancing the loans that he (Mr. Mohan) had obtained to purchase the Subject Properties. Mr. Matchton advised Mr. Mohan that, in order to obtain such refinancing, Mr. Mohan needed to have the Subject Properties appraised. On or about March 2, 1998, Mr. Matchton asked Respondent if he would appraise the Subject Properties (which Mr. Matchton described as a duplex and a triplex) for Mr. Mohan (Appraisal Assignment). Respondent told Mr. Matchton that he would accept the Appraisal Assignment, provided that he was paid either "at the door" (in advance) or upon delivery of the appraisals. Mr. Matchton advised that Mr. Mohan would pay Respondent by check "at the door." Respondent deemed such an arrangement to be acceptable. That same day, accompanied by Mr. Mohan, Respondent inspected, photographed, and made rough sketches of the Subject Properties. He also obtained information about the properties from Mr. Mohan. Before departing, Respondent received two checks (both made out to him) from Mr. Mohan. One check (in the amount of $400.00) was for "a duplex income property appraisal on the [West] Roan Court property" and the other check (in the amount of $450.00) was for "a triplex income property appraisal on the F Street property." Following his visit, using his computer, Respondent accessed local government public records (that were available "on line") on the Subject Properties and on other "comparable" properties ("to find comparable sales"). His examination revealed, among other things, that there were actually "two single-family twin homes" (not a duplex) located at 3976 and 3978 West Roan Court. Respondent subsequently spoke with Mr. Matchton and informed him that a separate appraisal needed to be done for each of the "twin homes." Mr. Matchton responded that he "wanted it done as a duplex," not as two separate properties. Mr. Matchton also told Respondent what "minimum valuations" were required "to make the [refinancing] work." Based upon the preliminary work he had done, Respondent determined that the fair market values of the Subject Properties were "far and above" these "minimum valuations." Sometime after April 1, 1998, Respondent contacted Mr. Matchton and advised that he (Respondent) was not going to do any additional work on the Appraisal Assignment because of ethical concerns he had regarding the manner in which (in accordance with Mr. Matchton's instructions) he was to complete the assignment. 4/ On or about April 10, 1998, Respondent spoke with Mr. Mohan over the telephone. During this telephone conversation, Mr. Mohan told Respondent to "forget about" appraising the Subject Properties and "just refund the money back." Respondent agreed to refund, in full, the $850.00 he had received from Mr. Mohan for the Appraisal Assignment, but indicated that, because of his financial situation, it was "going to take [him] some time" to make such a refund. Respondent never completed any appraisal reports concerning the Subject Properties (although he had started working on such reports). Not having received the promised refund from Respondent (who was experiencing serious "cash flow" problems at the time), Mr. Mohan, on May 26, 1998, filed a formal written complaint with Petitioner. The complaint read as follows: I, Steve Mohan requested Tony J. Maffei to appraise the following properties, 517 South F Street, Lake Worth Florida and 3976 and 3978 West Roan Court, Lake Worth, Florida. On March 2, 1998, Mr. Maffei came out and looked at the above properties and I paid him the amounts of $400 and $450 (copies of checks enclosed). On 3/16/98, Mr. Maffei was contacted to inquire about whether the appraisals were done. He said that they were not. Mr. Maffei was contacted almost every other day between 3/17/98 and 4/7/98, only to be told that the appraisals were not done. On 4/10/98, Mr. Maffei was contacted by phone, at which time he said that he could not do the appraisals and he would refund the monies back. Today is 5/13/98 and I have not received anything from him. Mr. Mohan's complaint was assigned to Dennis Thresher, an investigator specialist with Petitioner, on June 15, 1998. Mr. Thresher interviewed Respondent on July 30, 1998, at which time he requested Respondent to produce "copies of the two appraisals that were supposed to be provided to Mr. Mohan." On August 18, 1998, after some delay, Respondent provided Mr. Thresher with a copy of his work file on the Subject Properties. Included in the file were data sheets, photographs, and sketches. Because of a hardware problem, he was unable to retrieve and make copies of the "partial," unfinished appraisal reports concerning the Subject Properties that he had stored on his computer. At no time did Respondent "come out and actually say" to Mr. Thresher that he (Respondent) had not completed the appraisal reports concerning the Subject Properties. He reasonably assumed that Mr. Thresher already knew, from reading Mr. Mohan's complaint, that no such appraisal reports were completed by Respondent. Respondent did not intend, at any time, to mislead Mr. Thresher. On or about October 5, 1999, after the filing of the Administrative Complaint in the instant case, Respondent sent the following letter, accompanied by a check in the amount of $400.00, to Mr. Mohan: I have enclosed a bank check in the amount of $400 for the refund of the appraisal fee that you paid to me for the appraisal of one of the properties located in Palm Beach County. An additional bank check for $450 will follow as the refund of the appraisal fee for the other Palm Beach County property. I humbly apologize for the delay of the appraisal refund checks and the inconvenience it has caused you. This was due to my lower- than-typical cash flow and higher-than- typical bills/expenses. As we discussed via telephone, I am personally compelled to compensate you for you inconvenience, loss of interest income and costs you may have incurred due to the delay of the appraisal fee refund. As we agreed upon, I will perform an appraisal report for you on a single family or condominium property at "no fee" after you have received the full $850 appraisal refund. Please be expecting a $450 bank check for payment of the final balance before October 30, 1999. Please note that a copy of this letter and the $400 check will be faxed to the Department of Professional Regulation, Florida Real Estate Appraisal Board for their files. Again, I apologize for the inconvenience this has caused you. Mr. Mohan subsequently received from Respondent the "$450 bank check" Respondent had promised to send to him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board issue a final order dismissing Counts I and II of Administrative Complaint; finding Respondent guilty of the violation of Section 475.624(2), Florida Statutes, alleged in Count III (as amended) of the Administrative Complaint; and fining Respondent $500.00 for having committed this violation. DONE AND ENTERED this 30th day of March, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 30th day of March, 2000.
The Issue The issues are whether Respondent obstructed or hindered the enforcement of Chapter 475, Florida Statutes, or obstructed or hindered any person in the performance of his or her duties under Chapter 475, Florida Statutes, in violation of Section 475.25(1)(i), Florida Statutes; or failed to preserve and make available to Petitioner all books, records and supporting documents, in violation of Rule 61J2-14.012(1), Florida Administrative Code, and thus Section 475.25(1)(e), Florida Statutes. If Respondent is guilty of any of these violations, an additional issue is what penalty should be assessed.
Findings Of Fact Respondent was known as Phyllis Mae Wilson, but is now known as Phyllis Mae Perry due to a change in marital status. Since 1987 or 1988, Respondent has been licensed as a Florida real estate broker, holding license number 0462610. From October 1, 1998, through June 4, 2001, Respondent registered with Petitioner her "location address" as 2200 East Oakland Park Boulevard, Fort Lauderdale. From October 1, 1994, through January 9, 2001, Respondent registered with Petitioner her "mailing address" as 1940 Northeast 55th Court, Fort Lauderdale. As part of Petitioner's rotating schedule of office inspections, Monroe Berger, Petitioner's Investigation Specialist II, sent a letter to Respondent dated May 24, 1999, at 1940 Northeast 55th Court, Fort Lauderdale. The letter, which was sent by regular mail, states that Petitioner wishes to conduct an office inspection and escrow review, pursuant to cited statutes and rules. The letter warns: "Please be advised, you must respond to my request within 15 days of your receipt of this letter. Failure to do so may result in you being charged with hindrance in the enforcement of chapter 475, Florida Statutes, and administrative action may be taken against your real estate license." When Mr. Berger did not receive a response to the May 24 letter, he requested, by letter dated June 10, 1999, from the United States Postal Service a confirmation of the Northeast 55th Court address or, if applicable, a new address for Respondent. After the United States Postal Service verified that the Northeast 55th Court address was a good address for Respondent, Mr. Berger sent a second letter to Respondent at the incorrect address of Northeast 55th "Street," not "Court." Dated September 24, 1999, this letter advises that "a complaint has been filed against you"--evidently, by Mr. Berger. This letter gives Respondent 20 days to respond to the complaint. At some point, Respondent received this letter or a copy of it, but the record does not permit a finding, by clear and convincing evidence, as to when Respondent received this letter. Respondent did not respond to the September 24 letter. The only information that Petitioner received from Respondent following the letters of May 24 and September 24, 1999, was a form that Respondent submitted, on January 18, 2000, to advise Petitioner of a change in licensing status of a salesperson working for Respondent. Although not intended to advise Petitioner of any changes in Respondent's location or mailing address, the form contains a new address for Respondent: 3466 Northeast 12th Terrace, Oakland Park. However, in no way does the form respond to the letters of May 24 and September 24, 1999. Although Mr. Berger did not testify at the hearing, as he is now retired, his supervisor at the time testified that Mr. Berger did not pursue the investigation more vigorously on the advice of the supervisor, who counseled patience. Respondent claims that a series of personal and business matters effectively prevented her from attending to such regulatory matters as updated her licensing information and seizing the initiative in response to her early contact with Mr. Berger. During this period of time, Respondent was not active in real estate, but was busy with another business that she and her husband were operating. Respondent was also deterred from producing her real estate records because she knew that a leaky roof had caused them considerable water damage. At the time of her first contact with Mr. Berger, during the period relevant to this case, Respondent had no listings or pending sales, and she so informed Mr. Berger. Respondent had known Mr. Berger and his previous supervisor, whom she had sometimes called when she had had a regulatory question. During the period relevant to this case, Respondent spoke with Mr. Berger four times. For the most part, they agreed that Respondent would try to reassemble whatever undamaged real estate records that she could find. By the summer of 2000, they had agreed that Mr. Berger would send her a questionnaire, which, when completed by Respondent, would confirm the absence of any active escrow account and would obviate the necessity of an office inspection and audit, except possibly to confirm that Respondent had properly posted a sign and license. However, Mr. Berger never sent Respondent the questionnaire, and, after health issues arose, Respondent was again prevented from pressing the matter to a conclusion. Undoubtedly, Respondent did not respond as completely as she should have to the May 24, 1999, letter and to the September 24, 1999, letter, whenever she received it. Obviously, though, the Administrative Law Judge has credited her version of conversations with Mr. Berger in the absence of Mr. Berger's testimony. Although Respondent's testimony concerning Mr. Berger's casual approach to this matter is possibly inconsistent with the September 24 letter, the misaddressing of the letter precludes a determination as to when Respondent received the letter and, thus, a finding of inconsistency between Respondent's version of events and the apparently toughened approach adopted by Mr. Berger in the September 24 letter. At times, Respondent's credibility seemed strained, but these occasions were limited to the seemingly endless accumulation of excuses as to why she may not have received a letter or notice or could not have dealt more directly with this matter at the time. More importantly, Respondent's description of the extent to which Mr. Berger casually pursued the investigation is consistent with the considerable period of time that passed during the investigation without formal action, the prior relationship that Respondent had developed with Mr. Berger and his previous supervisor, and the low risk that Respondent posed to the public, given that her real estate practice was nearly inactive in 1999. For all of these reasons, Petitioner has failed to prove by clear and convincing evidence that Respondent failed to meet any unconditional demands from Petitioner. Thus, Petitioner has failed to prove that Respondent obstructed or hindered the enforcement of Chapter 475, Florida Statutes; obstructed or hindered a person in discharging his duties under Chapter 475, Florida Statutes; or failed to keep and make available to Petitioner the books, records, and documents required by law to be kept and produced upon demand.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 8th day of February, 2002, 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 8th day of February, 2002. COPIES FURNISHED: Dean Saunders, Chairperson Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack Hisey, Deputy Division Director Division of Real Estate Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robyn M. Severs, Senior Attorney Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Room N308 Orlando, Florida 32802 Phyllis Mae Perry 1940 Northeast 55th Court Fort Lauderdale, Florida 33308
The Issue Whether Respondent, Jason Dwight Walker, prepared a preconstruction appraisal report that was in violation of the Uniform Standards of Professional Appraisal Practice (USPAP), and thus section 475.624(4), Florida Statutes, and Florida Administrative Code Rule 61J1-9.001, as alleged in the First Amended Administrative Complaint and, if so, the sanctions to be imposed.
Findings Of Fact The Department is the agency of the State of Florida having authority, among its other duties and responsibilities, to regulate the practice of real estate. The Division of Real Estate is a legislatively-created division of the Department. The Board is established within the Division of Real Estate and is vested with the authority to administer chapter 475, Part II, Florida Statutes, and to enforce the provisions thereof. Respondent holds a license as a state-certified residential real estate appraiser, No. RD 3588. On or about June 20, 2012, Respondent contracted to perform a preconstruction appraisal report for a residential home (the Proposed Home) to be constructed at 14682 Northwest Pea Ridge Road, Bristol, Florida. The prospective owners were Thomas Ryan Cherry and Jessica Rogers Cherry (the Owners). The Proposed Home’s internal area was to be 3,458 square feet in size. The issue that forms the basis for the Administrative Complaint is the amount of that area that was to be built-out as the Gross Living Area (GLA) of the home. Petitioner has alleged that Respondent failed to consider the entire eight-page construction contract that governed the construction of the Proposed Home. As will be discussed in greater detail herein, the contract between the building contractor, Stephen Newman, and the Owners consisted of four numbered pages, the fourth page of which contained only a statutorily-required notice regarding construction defect claim procedures and the signature blocks. The contract also included a separately styled, numbered, and signed five-page Description of Materials. Page five of the Description of Materials included a provision that “[s]econd story will be framed and left unfinished. Owner to complete at future date. One 36” exterior door to be installed at head of stairs.” Respondent was retained to perform a preconstruction appraisal by the appraisal management company, StreetLinks Lender Solutions (StreetLinks), which was acting as the agent for First Federal Bank of Florida (Lender). The Lender was the client for the appraisal, but Respondent’s selection was performed at the sole discretion of StreetLinks. The appraisal agreement prohibited Respondent from contacting the Lender prior to delivery of the final appraisal report, or from attempting to obtain value or loan information from the Owners. Thus, of the parties to financing, StreetLinks was the sole allowable point of contact. The only plausible inference is that the information provided to Respondent in aid of the appraisal was provided by StreetLinks, or at StreetLinks’ direction. Respondent was provided with the first three pages of the contract. The Contract provided that the Proposed Home was to be constructed “from Owner provided plans,” that “[t]he owner provided plans and Builder’s Description of Materials are part of this contract,” and that “[o]wner agrees to not inhabit the dwelling until all construction is complete, certificate of occupancy is obtained, and all funds to builder have been paid.” Respondent included the construction contract provided to him in his work file. Respondent was provided with two floor plan sheets that depicted the two-story home at issue in its fully built-out and completed form. The floor plans included the layout of the Proposed Home, and general depictions of fixtures, counters and cabinets, lighting, fans and wiring. Respondent included the floor plan sheets in his work file. In order to confirm the nature of the building to be constructed, Respondent called the contractor, Mr. Newman, and had a conversation with him that lasted approximately 30 minutes. Mr. Newman testified that he provided Respondent with the dimensions of the second floor and the location of the various rooms, information that Respondent sought in order to confirm information contained in the floor plans. Respondent made an accurate sketch of the configuration of the second floor based on his conversation with Mr. Newman. Furthermore, access to the attic was described on Respondent’s specification sheet notes as “scuttle,” and not “stairs,” information that could only have been gathered from either Mr. Newman or the floor plans. Mr. Newman did not have a firm recollection of whether he provided Respondent with information regarding the materials, appliances, and finishes to be used in the Proposed Home. Nonetheless, a preponderance of the evidence, including Respondent’s testimony and contemporaneous notes of the conversation, indicates that Mr. Newman provided Respondent with that information, though the evidence also suggests that Mr. Newman understated the high quality of some of the finishes. At no time during the conversation did Mr. Newman indicate that the second floor was not going to be finished as depicted in the plans, and would instead be considered “attic space.” Mr. Newman denied that he had any responsibility to advise Respondent that it was not his intent to build-out the second floor in accordance with his described configuration, despite the fact that floor plans depicting a completed second floor were sent to the Owners under his signature, and were thereafter provided to Respondent. It is simply not credible that such would not have been disclosed over the course of a lengthy and in-depth conversation under the excuse that “it’s not my job to,” unless there was an intent to convince Respondent that the Proposed Home would be built in accordance with the plans. Respondent included specification sheet notes and his second floor sketch from his conversation with Mr. Newman in his work file. Using the plans, contract, and other information as to the property independently obtained by Respondent, and taking into account the information received from Mr. Newman, Respondent developed and communicated an appraisal report, No. 7393A, with an effective date of June 29, 2012. The appraised value of the Proposed Home was $250,000. That amount was consistent with and supported by properties of a size comparable to a 3,458 square foot home in the area. The house was constructed in accordance with the contract and Description of Materials. The second floor was framed and floored, and plumbing was stubbed out, but it was not finished so as to be considered GLA. The house as constructed contained a GLA of 2,014 square feet.1/ However, due to the very high quality (and expense) of cabinets, flooring, and fixtures, the cost of construction of the 2,014 square foot GLA home was $232,645, an amount very close to the $250,000 appraised (and financed) value. It is surprisingly (or not so surprisingly) serendipitous that the cost of the smaller home was so close to the appraised value of the larger home. It seems more than a happy coincidence that the Owners and the contractor had sufficient financing to account for the luxurious finishes. Respondent was not retained to do the draw inspections or the final inspection. Thus, he could not have known that the home as constructed was not consistent with the plans provided to him by StreetLinks, or with the description of the Proposed Home as discussed with Mr. Newman. On or about June 14, 2013, the Lender filed a complaint with the Division of Real Estate alleging misfeasance in the preparation of the appraisal.2/ The documents submitted to the Division with the complaint did not include the two floor plan sheets that had been provided to Respondent, but did include the contract signature page and the Description of Materials that had not been provided to Respondent. By letter dated August 14, 2013, the Lender, through its counsel, advised Respondent that it believed Respondent to have negligently prepared the appraisal, with the negligent act being Respondent’s failure to recognize that the second floor of the home was to remain unfinished. The letter provided, in part, that: Via the appraisal, you represented that you reviewed the construction contract between the builder and the Property owner. I have attached a copy of that contract for your ease of reference as Exhibit “B” hereto. However, the construction contract clearly indicates that the second story of the home would be left unfinished. Your appraisal failed to recognize this fact and now the home, as built, is nowhere near your appraised value. The letter did not include Exhibit “B.” Respondent kept the letter and other communication with the Lender in his work file. On September 4, 2013, Respondent sent an email to the Lender’s counsel, asking that “Exhibit B” of the Lender’s letter be provided to him. In response, the letter with all of the exhibits was sent to Respondent by email that same day. Exhibit “A” of the Lender’s letter consisted of a Certificate of Compliance from the Lender’s agent, StreetLinks, and a complete copy of Respondent’s appraisal report. Exhibit “B” of the Lender’s letter included the same three-page construction contract that was contained in Respondent’s work file. It contained the same letter from Mr. Newman to the property owners. Finally, it contained floor plans for the home but, surprisingly (or not so surprisingly), it included only the floor plan sheet for the first floor of the Proposed Home. The Lender’s Exhibit “B” did not include the floor plan for the second floor of the Proposed Home that had been originally provided to Respondent by or on behalf of its agent, StreetLinks. Exhibit “B” of the Lender’s letter to Respondent did not include the Description of Materials with the provision that the second story of the home would be left unfinished. At the hearing, Petitioner offered what was represented to be the complete contract as an exhibit. The contract offered was four pages and, but for the statutorily required notice regarding construction defect claim procedures and the signature blocks, was identical to the contract in Respondent’s workfile. The exhibit also included the separately styled and signed Description of Materials. As set forth herein, the Description of Materials was not provided to Respondent by or at the direction of StreetLinks, or otherwise. In analyzing the issues in this case, the undersigned paid close attention to the opinion of Petitioner’s expert witness, Mr. Rogers. Mr. Rogers opined that Respondent should have engaged in greater inquiry that would have revealed that the second floor was to remain unfinished, and as a result the GLA was stated, melodramatically, to be “tragically overstated.” In his testimony, and his report which was received in evidence, Mr. Rogers noted that Mr. Newman’s cover letter to the Owners referenced a description of materials, estimate, and legal description. He noted that “it is actually atypical for the owner or lender to supply all of the information about the subject property the appraiser will need to produce credible assignment results.” In instances of insufficient documentation, Mr. Rogers testified that among the options for dealing with that occurrence is for the appraiser “to go find that documentation and complete the assignment.” Mr. Rogers believed that Respondent should have made “a request to the lender” for the referenced materials, apparently being unaware that the terms of Respondent’s engagement with StreetLinks prohibited such contact. He further opined that Respondent’s communication with Mr. Newman “was insufficient . . . to an accurate description of the proposed home,” and that “[e]xpansion of the conversation with the builder . . . was necessary.” How he was able to determine the sufficiency of a conversation to which he was not privy was not explained, and his opinion in that regard is given no weight. Based on the totality of the evidence in this case, Respondent obtained information that was reasonably calculated to identify the relevant characteristics of the subject property. The contract, the complete floor plans for the first and second floors of the home, and the lengthy conversation with the builder were sources that were objectively reasonable and reliable, and consistent with USPAP and the Department’s statutory and regulatory authority. Mr. Rogers acknowledged that complete floor plans are an appropriate source for information regarding the characteristics of an appraised property. However, he discounted Respondent’s reliance on such floor plans in this case. His explanation for doing so was not compelling or persuasive, and is not accepted. Rather, the information used by Respondent, as described herein, was sufficient to identify the extent and character of the proposed improvements.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department of Business and Professional Regulation, Real Estate Appraisal Board, enter a final order dismissing the First Amended Administrative Complaint. DONE AND ENTERED this 31st day of August, 2016, in Tallahassee, Leon County, Florida. S GARY EARLY 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 31st day of August, 2016.
Findings Of Fact The Petitioner, Roger B. Wozniak, applied for Florida licensure as a real estate salesman on February 25, 1987. R. Ex. 1. The Florida Real Estate Commission proposed to deny his application due to his answers to questions 6, 13, and 14, in his application, and his admission that he was not a Florida resident as of March 18, 1987. (Letter to the Petitioner dated May 3, 1987, from Randy Schwartz, Assistant Attorney General, which accompanies the request for formal administrative hearing and request for assignment of hearing officer, filed in the files of the Division of Administrative Hearings, and now officially recognized.) The answers to questions 6, 13, and 14 concern the Petitioner's conviction which will be discussed in subsequent findings of fact. On the date that he applied for licensure, the Petitioner was not a Florida resident. T. 26. At the time of the formal administrative hearing, the Petitioner was and is now a Florida resident, and resides in Tequesta, Florida, with his family. P. Exs. 13 and 14; T. 11, 24. He closed on his home in Tequesta on June 10, 1987. T. 24. The Petitioner was licensed as a real estate salesperson in Illinois from 1967 until the early 1980's. P. Ex. 1; T. 12. He worked as a licensed real estate salesperson and real estate appraiser during these years in Illinois. Id. By indictment filed on October 4, 1984, the Petitioner was charged with multiple felony counts involving twelve false applications for FHA and VA loans, obstruction of justice, and failure to report income for income tax purposes. P. Ex. 15. The first offense was alleged to have occurred on January 29, 1980, and the last offense was alleged to have occurred on December 6, 1982. Id. In January, 1985, the Petitioner was convicted of counts one through nine, eleven, twelve, fourteen, and fifteen. T. 13, 29; R. Ex 15. He was initially sentenced to a term of imprisonment for two years on counts one, fourteen and fifteen, concurrently. On June 24, 1985, the sentence was modified by suspension of the sentence of imprisonment and imposition of five years probation. P. Ex. 15. In his application, the Petitioner provided the Real Estate Commission with P. Ex. 15. T. 30, 36. (This exhibit was referred to by counsel as exhibit A, but became P. Ex. 15.) P. Ex. 15 contained only the indictment and the last order reducing his sentence, but from these documents the Real Estate Commission could easily discern the counts upon which the Petitioner was found guilty because the sentencing order was accompanied by a form which completely lists the counts upon which sentence was premised. Thus, in his application the Petitioner disclosed all material matters concerning his conviction. As a result of his conviction, the State of Illinois revoked the Petitioner's real estate license. T. 13. Following his conviction, the Petitioner attended real estate courses taught by the Real Estate Education Company in Chicago, Illinois, receiving credit for courses in basic real estate transactions, advanced real estate principles, contracts and conveyances, finance, and appraisal. P. Exs. 2 and 4. In December, 1986, the Petitioner became a designated member of the National Association of Real Estate Appraisers, and became entitled to the designation of Certified Real Estate Appraiser (C.R.E.A.). P. Ex. 3. He is listed in the 1987 national directory of the National Association of Real Estate Appraisers as a Certified Real Estate Appraiser. P. Ex. 10. In February, 1987, the Petitioner received a certificate for completion of a three hour training session and satisfactory completion of a written test sponsored by the National Association of Realtors. P. Ex. 5. Prior to his felony conviction, the Petitioner was enrolled as a correspondence student in the California Coast University. T. 16. He completed his course of study, and on March 19, 1987, he received a bachelor of science degree in business administration from California Coast University. P. Ex. 9 and 6. As a part of his five year probation, the Petitioner was required to undergo counseling. He was referred to a Dr. Schneider and Dr. Indovina of the DuPage County Health Department in Wheaton, Illinois. He was first seen by Dr. Schneider on November 21, 1985. Both Dr. Schneider and Dr. Indovina were of the opinion that the Petitioner had made considerable-progress since his first referral. As of March 10, 1987, both physicians were of the opinion that the Petitioner had learned the consequences of his past behavior and would not engage in illegal behavior in the future. P. Ex. 8. The Petitioner is currently licensed by the State of Illinois as an insurance producer, and that license was never revoked by Illinois for Petitioner's felony conviction. P. Ex. 11; T. 32. After an administrative hearing at which the Petitioner presented evidence of rehabilitation, the State of Illinois reissued Petitioner's real estate salesperson license. P. Ex. 12; T. 31, 22-23. The Petitioner currently holds a real estate salesperson license from Illinois. Id. The Petitioner is currently serving the remainder of his probation, having about three more years of probation to serve. He reports monthly to a probation officer in West Palm Beach.
Recommendation For these reasons, it is recommended that the Florida Real Estate Commission enter its final order denying the application of Roger B. Wozniak for licensure as a real estate salesman in Florida. DONE and ENTERED this 27th day of July, 1987. 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 27th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2018 The following are rulings upon findings of fact proposed by the parties (using the numbers used by the parties) which have been rejected. Findings of fact proposed by the Petitioner: 2-6. There was no evidence presented concerning the deliberations of the Florida Real Estate Commission. Moverover, this evidence is subordinate to finding of fact 1. Findings of fact proposed by the Respondent: 5. A finding of fact that the Petitioner was elusive cannot be made on this record. As discussed in finding of fact 6 above, the Petitioner candidly provided the Real Estate Commission with a copy of the materials in P. Ex. 15, and from those documents one can easily determine the counts upon which the Petitioner was adjudicated guilty. 8. The two year prison term was suspended. The Petitioner has in fact taken occupancy. There is no contrary evidence in the record. While the voter's registration is evidenced by a temporary card, the temporary card clearly states that it is only to be used until a permanent voter identification card is received. It is inferred that the temporary card is issued only when a permanent voter's registration will soon be issued. There is no evidence in the record that the Petitioner has only registered temporarily. COPIES FURNISHED: Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Roger B. Wozniak 14 Hickory Hill Road Tequesta, Florida 33469 Lawrence S. Gendzier, Esquire Assistant Attorney General Room 212, 400 West Robinson Orlando, Florida 32801
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.
