The Issue The issue is whether Respondent is guilty of obtaining his license by fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes.
Findings Of Fact At all material times, Respondent has been a licensed real estate broker, holding license number 0500228. Respondent’s licensing cycle ends on March 31 every two years. He duly renewed his broker’s license prior to its expiration on March 31, 1994. During the ensuing two-year licensing term, Respondent executed on January 1, 1996, a Request for License or Change of Status and submitted the form to Petitioner. The purpose of submitting the form was to notify Petitioner that Respondent had adopted a corporate form of doing business as a real estate broker. Section A of the form contains a series of options. Respondent selected “other” and wrote in “change to corp.” Section B contains identifying information, and Respondent completed this section. Section C is irrelevant to the change that Respondent was making, and he did not fill in this section. The instructions for Section A direct the person filing the form as follows: “If this is a renewal of your license, it must be accompanied by the required fee and sign this: I hereby affirm that I have met all statutory and rule requirements regarding education for license renewal.” Respondent signed this statement even though he was not seeking a renewal of his license. The instructions for Section B told the person filing the form how to complete Section B. But these instructions required no representations. The next form generated in this case was another renewal notice, as Respondent’s license neared the end of its term, which expired March 31, 1996. This form states: “By submitting the appropriate renewal fees to the Department . . ., a licensee acknowledges compliance with all requirements for renewal.” By check dated December 30, 1995, Respondent timely submitted his license renewal fee of $95 in response to the renewal notice. He was unaware at the time that he had not met the continuing education requirement for relicensing, which called for 14 hours of education. In reliance on the implied representation that Respondent had completed the required continuing education, Petitioner renewed Respondent’s license. Later, during a random audit, Petitioner discovered that Respondent had not completed the necessary courses and commenced this proceeding. Respondent was cooperative during the audit. Upon discovering that he had not complied with the continuing education requirement, he promptly undertook the necessary coursework, which he completed by August 6, 1996.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the administrative complaint against Respondent. ENTERED in Tallahassee, Florida, on June 4, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on June 4, 1997. COPIES FURNISHED: Attorney Andrea D. Perkins Department of Business and Professional Regulation Division of Real Estate Legal Section 400 West Robinson Street Suite N-308A Orlando, Florida 32801 Frederick H. Wilsen Frederick H. Wilsen & Associates, P.A. Law Office of Gillis & Wilsen 1415 East Robinson Street Suite B Orlando, Florida 32801 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as facts: The Respondent John J. Piccione, is a licensed real estate broker, having been issued license No. DK006911. The Respondent John J. Piccione, Inc., is a corporate real estate broker, having been issued license No. CW0069127. The Respondent Theresa M. Harris, is a licensed real estate salesperson having been issued license No. FL0331486. At all times material to the issues in the Administrative Complaint, the Respondent Theresa M. Harris was a licensed salesperson with the Respondent John J. Piccione Real Estate, Inc., under the brokerage license of the Respondent John J. Piccione. Theresa M. Harris was the listing and selling salesperson in connection with a real estate transaction between Wilbur J. Hamilton, Jr., as seller, and Mr. and Mrs. James Smith, as buyers. This transaction was closed on December 16, 1980, in Ocala, Florida. The closing was held in the offices of American Mortgage Funding Corporation, and was conducted by Thomas G. Sawaya, Esquire, as Closing Attorney. Present at the closing were the seller, Mr. Hamilton, the buyers, Mr. and Mrs. Smith, the Respondent, Theresa M. Harris, and Charles DeMenzes, President of American Mortgage Funding Corporation. Prior to the time the Contract for Sale was executed by the seller and the buyers, the Respondent Harris was informed by a party named Mr. Alsobrook that he claimed an interest in the proceeds from the sale on the subject property. The seller acknowledged that Mr. Alsobrook was entitled to a share of the proceeds. After the contract was signed, but before closing, the Respondent Harris was contacted on two more occasions by Mr. Alsobrook concerning his interest in the proceeds of the sale. On December 15, 1980, before the closing occurred, a Civil Complaint was filed against the seller in the Circuit Court of Marion County by Mr. Alsobrook regarding Mr. Alsobrook's interest in the property and the proceeds. In connection with this lawsuit a Lis Pendens was delivered to the Office of the Clerk of the Circuit Court on December 15, 1980, but was not filed in the Official Records Book of Marion County until December 17, 1980, in O.R. Book 1046, page 116, after the Deed from Mr. Hamilton to Mr. and Mrs. Smith had been recorded in O.R. Book 1046, page 73. On December 15, 1980, the day before, the closing, Robert Duggan, who is Mr. Alsobrook's attorney had a telephone conversation with the Respondent Harris, in which he informed her that a lawsuit had been filed concerning Mr. Alsobrook's interest in the proceeds of the sale, and that a Lis Pendens had been or was going to be filed against the property. This attorney requested that the closing be delayed until the dispute concerning the property could be resolved. On December 16, 1980, before the closing, the Respondent Harris conveyed to the Respondent Piccione, her broker, the contents of her conversation with Mr. Alsobrook's attorney. The Respondent Harris was instructed by the Respondent Piccione to attend the closing and not to mention either the call from Attorney Duggan, or the pending lawsuit, or the Lis Pendens, unless someone else brought these matters up. At no time during the closing or prior to the closing did the Respondent Harris make known to the buyers, the lender, or the closing Attorney, the facts known to her regarding the call from Attorney Duggan, the pending lawsuit, or that a Lis Pendens had been or would be filed against the property. The Respondent Piccione was aware of the fact that a Lis Pendens had been or was going to be filed against the property, but he instructed his salesperson, Respondent Harris, to withhold this information from the parties to the sales transaction at the time of closing. The closing was completed and the lender, without knowledge of the pending suit and Lis Pendens, disbursed the net proceeds of $15,728.24 to Mr. Hamilton as the seller. The closing Attorney and the lender were informed of the Lis Pendens and the pending suit by the attorney for Mr. Alsobrook the day after the closing took place. Upon being informed of the pending lawsuit, the lender contacted the seller, who agreed to return the proceeds to the lender The lawsuit was subsequently dismissed and the Lis Pendens discharged upon distribution of the net sale proceeds to Mr. Alsobrook in the amount of $6,385.19 and to Mr. Hamilton in the amount of $9,393.05. The Respondents received a commission of $1,500 which was paid $900 to Mrs. Harris and $600 to Piccione Real Estate, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Theresa M. Harris, be found guilty of violating Section 475.25(1)(b), Florida Statutes, and that her license be suspended for one year. It is further RECOMMENDED that the Respondents, John J. Piccione and John J. Piccione Realty, Inc., be found guilty of violating Section 475.25(1)(b), Florida Statutes, and that their licenses be suspended for one year. THIS RECOMMENDED ORDER entered on this 27 day of September, 1982. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27 day of September, 1982.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility for regulating the real estate profession in the State of Florida. At all times pertinent to this proceeding, the Respondent was a licensed real estate salesperson in the State of Florida, having been issued license number 0189734 in accordance with Chapter 475, Florida Statutes. On July 16, 1991, Petitioner filed an administrative complaint against Respondent which contained certain factual allegations and which charged Respondent with violating certain statutory provisions and rules regulating licensed real estate professionals in the State of Florida. The matter was assigned Case No. 9181335 by Petitioner. Thereafter, the matter was referred to the Florida Division of Administrative Hearing (DOAH) for formal proceedings pursuant to Chapter 120, Florida Statutes. Upon being referred to DOAH, the matter was assigned DOAH Case No. 91-4852. On October 31, 1991, a formal hearing was conducted by a DOAH Hearing Officer. The Respondent was represented by counsel at that formal hearing. Following the formal hearing, a Recommended Order was duly entered by the Hearing Officer which contained findings of fact, conclusions of law, and a recommended disposition of the proceeding. The Hearing Officer found that Petitioner had proved the violations alleged against Respondent by clear and convincing evidence and recommended that Petitioner impose an administrative fine against Respondent in the amount of $1,000. On April 3, 1992, Petitioner entered a Final Order that adopted the findings of fact, conclusions of law, and recommended disposition submitted by the Hearing Officer in DOAH Case 91-4852. The Final Order imposed an administrative fine against Respondent in the amount of $1,000. Respondent thereafter appealed the Final Order to the Third District Court of Appeal of Florida where it was assigned Case No. 92-01033. On June 3, 1992, Petitioner entered an "Order Granting Stay" which stayed the Final Order pending the appeal. On September 21, 1992, Respondent's appeal was dismissed by order of the Third District Court of Appeal. The Final Order entered by Petitioner on April 3, 1992, was lawfully imposed, is final, and is binding on Respondent. At the time of the formal hearing conducted in this proceeding, Respondent had not paid the $1,000 administrative fine that was imposed upon her by the Final Order entered in Case No. 9181335 (DOAH Case No. 91-4852) on April 3, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order which finds that Respondent violated the provisions of Section 475.25(1)(e) and of Section 475.42(1)(e), Florida Statutes, and which suspends Respondent's license as a real estate salesperson for ten years. It is further recommended that the final order provide that the suspension of Respondent's license be terminated upon her paying the $1,000.00 administrative fine that was imposed upon her by the Final Order entered in Case No. 9181335 (DOAH Case No. 91-4852). DONE AND ORDERED this 13th day of October, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 13th day of October, 1993. COPIES FURNISHED: Theodore R. Gary, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue, Suite N-607 Miami, Florida 33128 Cecelia M. Smile 810 Rutland Drive, Apartment 726 Lincoln, Nebraska 68512 Darlene F. Keller, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this matter is whether the Florida Real Estate Commission may deny Petitioner’s application for a license as a real estate sales associate, and, if so, whether it is appropriate to do so based on the underlying facts.
Findings Of Fact The Commission is the state agency charged with licensing real estate sales associates in Florida. See § 475.161, Fla. Stat. On January 21, 2016, Petitioner applied to the Commission for a license as a real estate sales associate. In her application, Petitioner dutifully divulged that on December 12, 2002, the Commission revoked her real estate broker’s license. On August 16, 2016, the Commission issued a Notice of Intent to Deny notifying Petitioner that it denied her application for a sales associate license. The Commission denied Petitioner’s application based on its finding that Petitioner’s broker’s license was previously revoked by the Commission in 2002. At the final hearing, Petitioner explained the circumstances that led to her broker’s license revocation. In 2000, a Commission investigator audited her real estate trust account. The audit uncovered information that Petitioner failed to timely transfer a $1,000 deposit and properly reconcile her escrow account. Petitioner disclosed that a sales contract she was handling required the buyers to deposit $1,000 with her as the broker. The sale fell through, and the buyers did not close on the house. In May, 2000, the buyers demanded Petitioner transfer the deposit within 15 business days. Petitioner, however, did not forward the deposit out of her escrow account until four months later in September 2000. Based on this incident, the Commission alleged that Petitioner failed to account for delivered funds; failed to keep an accurate account of all trust fund transactions; failed to take corrective action to balance her escrow account; and filed a false report in violation of sections 475.25(1)(d)1, 475.25(1)e, 475.25(1)(l), 475.25(1)(b) and Florida Administrative Code Rule 61J2-14.012(2). Based on the charges, the Commission ordered Petitioner’s real estate broker’s license permanently revoked. Petitioner stressed that she did not steal the buyers’ money. Her mistake was in not timely transferring the deposit from her trust account. Petitioner asserted that she simply lost track of the funds. At the final hearing, Petitioner accepted full responsibility for her mismanagement. At the final hearing, Petitioner expressed that she first entered the Florida real estate industry in 1982 when she became a licensed real estate sales associate. In 1987, she obtained her broker's license. She subsequently purchased a Century 21 franchise. She conducted her real estate business until 2002 when her broker’s license was revoked. Petitioner explained that she is not seeking another broker’s license from the Commission. Instead, she is just applying for another sales associate license. Petitioner described the difference between a sales associate and a broker.5/ Petitioner stated that a sales associate works directly under, and is supervised by, a broker. The sales associate interacts with prospective buyers and sellers, negotiates sales prices, and accompanies clients to closings. Regarding financial transactions, however, the broker, not the sales associate, processes all funds related to a real estate sale. The broker, not the sales associate, transfers funds into and out of escrow accounts. In other words, the error Petitioner committed as a broker in 2000 could not happen again if she was granted a sales associate license. Petitioner further testified that during the time she worked as a sales associate, she was involved in the sale of approximately 100 houses. Petitioner represented that she never received any complaints or criticisms from any of her clients. Petitioner relayed that she became motivated to return to the real estate business following her husband’s death in 2015. Petitioner expressed that she was very good at selling houses. Real estate is her passion. She voiced that she eats, sleeps, walks, and talks real estate. Despite her misstep in 2000, Petitioner declared that she is a very honest and hardworking person. She just wants another chance to work in the profession that she loves. Currently, Petitioner works for a charitable organization. She helps administer and manage the charity’s finances. Petitioner represented that she has never failed to meet her financial responsibilities. She has always accounted for all of the funds for which she is entrusted (approximately $8 million since she began working for the charity over 20 years ago). No evidence indicates that Petitioner has committed any crimes or violated any laws since her broker’s license was revoked in 2002. At the final hearing, Petitioner presented three witnesses who testified in favor of her receiving a sales associate license. All three witnesses proclaimed that Petitioner is trustworthy, of good character, maintains high moral values, and is spiritually strong. The witnesses, who know Petitioner both personally and professionally, opined that she is honest, truthful, and has an excellent reputation for fair dealing. All three witnesses declared that the public would not be endangered if the Commission granted Petitioner’s application for licensure. Petitioner also produced six letters of support. These letters assert that Petitioner is an honorable and trustworthy person. Based on the competent substantial evidence presented at the final hearing, the preponderance of the evidence provides the Commission sufficient legal grounds to deny Petitioner’s application. Consequently, Petitioner failed to meet her burden of establishing that she is entitled to a license as a real estate sales associate. However, as discussed below, Petitioner demonstrated that she is rehabilitated from the incident which led to the revocation of her broker’s license in 2002. Therefore, the Commission may, in its discretion, grant Petitioner’s application (with restrictions) pursuant to sections 475.25(1) and 455.227(2)(f).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Florida Real Estate Commission has the legal authority to deny Petitioner’s application for licensure. However, based on the underlying facts in this matter, it is RECOMMENDED that the Florida Real Estate Commission enter a final order granting Petitioner’s application for a license as a real estate sales associate. DONE AND ENTERED this 10th day of May, 2017, in Tallahassee, Leon County, Florida. S BRUCE CULPEPPER 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 10th day of May, 2017.
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
Findings Of Fact At all times pertinent to these Findings of Fact, the Respondent has been a licensed real estate broker in the State of Florida having been issued license number 0317497. In 1985, the Respondent operated his own real estate brokerage firm, Kline Real Estate, Inc., which acted as a marketing agent for Majestic Builders, a construction company. Both Kline Real Estate, Inc., and Majestic Builders did business in and around the Spring Hill, Hernando County, Florida, area. Majestic Builders was owned by George Orlando. In early 1985, Majestic Builders' qualifying general contractor was Stephen Cannon. In early 1985, the Respondent was contacted by the Whitmarshes of Lynchburg, Virginia, who expressed interest in having a modified version of a Majestic Builders model home built on a piece of property in Spring Hill, Florida. Eventually, the Whitmarshes selected a lot on which to have the residence built, and the Respondent brokered the purchase of the lot (from a third party) and the construction contract. Both contracts were entered into on or about April 27, 1985. Both contracts required that the Whitmarshes make a deposit, $1,000 on the lot purchase and $5,000 on the construction contract. Both deposits were made into the escrow account maintained by Kline Real Estate, Inc. The $1,000 deposit was disbursed without incident at the closing of the lot purchase on or about May 7, 1985. The construction contract between the Whitmarshes and Majestic Builders provided in connection with the deposit: DEPOSIT TO FIX HOME PRICE FOR PERIOD OF 6 MOS. [MONTHS), DURING WHICH COMMENCEMENT MAY BEGIN WITHIN 30 DAYS OF NOTIFICATION AND INITIAL PAYMENT OF 30% OF BALANCE. SHOULD COMMENCEMENT BE AFTER 6 MOS., DEPOSIT WILL STILL APPLY BUT TO NEW PURCHASE PRICE OF MODEL AT TIME OF CONSTRUCTION. For the balance of the spring and summer of 1985, the Whitmarshes continued to consult with the Respondent and, primarily through the Respondent, with George Orlando regarding the modifications the Whitmarshes desired to make to the Majestic Builders model, but they were not particularly anxious to commence construction for personal, family health reasons. In addition, they understood and knew from the contract provision and from conversation with the Respondent that their $5,000 deposit was supposed to be credited to the price of the home they eventually built even if commencement was more than six months from the contract date. On or about November 11, 1985, the Respondent advised the Whitmarshes by telephone, confirmed in writing: This [is] notification, that in accordance with your contract, you are legally in default. This letter is written out of legal necessity and has no bearing on your deposit which will bw [sic] applied to the agreed upon purchase price of a Majestic Home. The default merely is to state the builder is no longer held to the prices quoted. And any changes either up or down will be reflected in the new contract price. (Emphasis added.) Notwithstanding his November 11 letter, the Respondent withdrew the Whitmarshes' $5,000 deposit from the Kline Real Estate, Inc., escrow account and deposited it in the Kline Real Estate, Inc. operating account. Of the $5,000, $1,000 was used the purchase of a building lot for Majestic Builders, and $1,500 was paid directly to George Orlando, to whom the Respondent believed the $5,000 belonged. 1/ The Respondent is unable to account for the balance of the $5,000. 2/ On or about March 21, 1986, the Respondent received a letter from Mr. Whitmarsh stating: "With this letter I authorize you to use $500 from my escrow account to obtain a new floor plan and prepare a cost estimate for my revised version of your Wind and Wildfire Model Home." The Respondent, who had had a heart attack in September, 1985, and was in the process of closing out Kline Real Estate, Inc., and getting out of the real estate business, passed the letter on to George Orlando. Orlando balked at the request, taking the position that the purpose of the $5,000 was not for use to draw up revised plans. But it is the Respondent's understanding that Orlando eventually relented and agreed not to require the Whitmarshes to pay for the revised plans with new money. It is unclear from the evidence whether revised plans ever were drawn. 3/ In approximately June or July, 1986, the Respondent closed Kline Real Estate, Inc., and got out of the real estate business. He never heard anything else from the Whitmarshes about the transaction and assumed that Orlando and the Whitmarshes had satisfactorily concluded their business dealings. But in fact in approximately early 1987, the Whitmarshes received information that Majestic Builders was not a licensed contractor. Although, on checking, they learned that Majestic Builders then had a licensed qualifying contractor, the Whitmarshes still did not feel comfortable with Orlando and Majestic Builders. In about April, 1987, the Whitmarshes decided to hire another builder and asked Orlando for the return of their deposit. Orlando refused, saying that the Respondent had the money. 4/ Nonetheless, the Whitmarshes never contacted the Respondent for the return of the deposit. Later, the Whitmarshes and Orlando became involved in another dispute arising out of the alleged improper use of Orlando's Wind and Wildfire drawings by the Whitmarshes and the builder they eventually hired, Stephen Cannon, who had been Majestic Builders' qualifying general contractor but had left to start his own construction company with the understanding that Cannon would not use any of Majestic Builders' drawings. The Respondent had no knowledge of any of these disputes between Orlando and the Whitmarshes until he was interviewed by a Department of Professional Regulation (DPR) investigator in August, 1988. The DPR had begun an investigation of Orlando on the Whitmarshes' complaint of alleged violations of the laws regulating construction contractors and learned that the dispute involved a deposit that had been held in trust by a licensed real estate broker. DPR then began an investigation of the Respondent.
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 the Respondent, Ronold E. Kline, guilty of violating portions of paragraph (b) and paragraphs (d) and (k) of Sections 475.25(1), Florida Statutes (1987), and suspending his license for a period of one year. RECOMMENDED this 15th day of December, 1989, 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 15th day of December, 1989.
Findings Of Fact The Respondent, John J. Piccione, is an instructor at Gold Coast School of Real Estate, Inc., holding instructor's permit number ZH 31158. He has been a licensed instructor for approximately fifteen years. Piccione used to be the permit holder for Gold Coast School of Realty, Inc., but as of January 3, 1984, the school permit was issued to Mary Piccione. Additionally, Mary Piccione is the chief administrator of Gold Coast School of Realty, Inc. John J. Piccione's license as a real estate broker was suspended for one year, from November 3, 1983 to November 2, 1984.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges contained in the Administrative Complaint be DISMISSED. DONE and ORDERED this 21st day of September, 1984, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1984. COPIES FURNISHED: Fred Langford Staff Attorney Department of Professional Regulation Real Estate P. O. Box 1900 Orlando, Florida 32802 John J. Piccione 1515 E. Silver Springs Boulevard Suite 105-WG Ocala, Florida 32670 Harold R. Huff, Director Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Orlando, Florida 32802
Findings Of Fact Respondent is now and was at all times material to this action a licensed real estate broker in the State of Florida, holding license number 0064475. Respondent operated his own real estate brokerage firm under his license. The firm was located in Niceville, Florida. In addition to his real estate brokerage business Respondent maintained and managed his personal real estate investments. Several of these personal investments included rental property which Respondent would later sell. One such piece of property was located at 104 Perdido Circle, Niceville, Florida, and is the property involved in this action. Prior to July 6, 1985, the Respondent, as seller and not as a broker, advertised for sale the Perdido property. Sometime around July 6, 1985, Robert L. Mitchell and June F. Mitchell looked at the Perdido property. Frank Ray, a salesman for John Brooks Realty, an unrelated real estate firm showed the property to the Mitchells. They liked the property and wanted to buy it. Frank Ray made arrangements for himself and the Mitchells to meet with Respondent in order to discuss the terms of the potential purchase contract. They met on July 6, 1985. The meeting lasted approximately an hour to an hour and a half. During the lengthy meeting Respondent went over the purchase terms contained in the contract of sale. The Mitchells main concern was to have immediate occupancy of the house. Special terms were developed for renting the property. At some point during the meeting the down payment came under discussion. Originally, the Mitchells had planned on a $1500 down payment which was acceptable to Respondent. However, as the meeting progressed the Mitchells decided they would like to reduce the amount of the down payment. Respondent informed the Mitchells that the only way he could decrease the $1500 down payment was to make the money a non-refundable option payment. Respondent then marked out the $1500 down payment figure contained in the purchase contract and inserted a $1200 figure. Respondent concurrently added the language "option payment" next to the $1200 figure. The remainder of the contract was discussed and the Mitchells signed the amended document. The Mitchells then wrote a check to Respondent, personally, in the amount of $1200. The note section of the check the Mitchells wrote contained the language "house down payment." The exact discussion on the down payment/option is not clear. What is clear from the evidence is that neither party had a meeting of the minds over what the $1200 check was. The Mitchells being very inexperienced in real estate thought it was a down payment. Although it is doubtful the Mitchells understood the legal meaning of the term "down payment." Respondent thought it was a non- refundable option payment. Absolutely no evidence of fraud or misrepresentation on the part of Respondent was demonstrated. Likewise, there was no evidence that Respondent in any way used his knowledge or expertise in the real estate market improperly. The final result of the negotiations was that the Mitchells had entered into what on its face purports to be a rental contract with an option to buy. However, since there was no meeting of the minds over the option, the option was eventually unenforceable. Since there was no meeting of the minds regarding the $1200 the money was not properly escrowable property. In essence the $1200 was neither a down payment nor an option payment. This lack of escrowability is borne out by the sales contract which calls for another escrow agent. 1/ The Mitchells took possession of the property for approximately three months. The Mitchells failed to obtain financing. The contract was conditioned upon the Mitchells obtaining financing, and the transaction failed to close. A dispute arose between the parties concerning the down payment/option money. When the dispute could not be resolved by the parties, the Mitchells filed a lawsuit against Nevin H. Nordal demanding a refund of the $1200 "house down payment." As a result of the Mitchell's lawsuit the County Court, in Okaloosa County, Florida, Summary Claims Division, by Amended Final Judgment dated January 20, 1987, awarded the sum of $1,028,87. The judgment figure is the balance of the $1200 after deduction of a counterclaim of $171.13 for cleaning the house after the Mitchells evacuated the property. Additionally, the Respondent was required to pay costs in the sum of $57 for a total of $1,087.87 due the Mitchells. The judgment amount is bearing interest at a rate of 12 percent per annum. The County Court judgment contains no findings of fact as to the Judge's reasoning on the judgment award. The Mitchells have repeatedly demanded of the Respondent that he pay the judgment. He has repeatedly refused to pay the judgment. Respondent did account to the Mitchells for the money when he told them he had deposited the check and had spent the funds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED that the Administrative Complaint failed against Respondent, Nevin H. Nordal, be dismissed. DONE and ENTERED this 4th day of March, 1989, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 4th day of March, 1989.
The Issue Whether the Respondents committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to regulate the practice of real estate, pursuant to the laws of the State of Florida. At all times pertinent to this proceeding, Respondent, Lynton Oliver Thomas, was a licensed real estate broker, having been issued license number 0504596 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent Thomas was as a broker-salesperson at Pagliari Realty, Inc., 323 Northeast 167 Street, North Miami Beach, Florida 33162. At all times pertinent to this proceeding, Respondent, L T Express Realty Corp., was a corporation registered as a Florida real estate broker, having been issued license number 0273473 in accordance with Chapter 475, Florida Statutes. At all times pertinent to this proceeding, Respondent Thomas was licensed and operating as qualifying broker and officer of Respondent L T Express Realty Corp. The office for this corporate entity was located at 2124 Northeast 123 Street, North Miami Beach, Florida. There was no evidence that Respondent Thomas operated his corporate entity from any other office. On May 7, 1995, Respondent Thomas, a licensed real estate broker, d/b/a L T Express Realty Corp., negotiated a contract for the sale of a house between Bruce and Ann McCormick (as sellers) and Marie S. Saintel and Carita Luc (as buyers). The buyers gave Respondent Thomas an earnest money deposit in the amount of $5,528.00. The transaction failed to close. The sellers, through their agent, attempted to make a demand upon Respondent Thomas for delivery of the earnest money deposit. The sellers' agent was unable to serve the demand on the Respondents because the Respondents had closed their offices and could not be located. Respondents had, or should have had, a good faith doubt as to the proper way to disburse the escrowed funds. Respondent Thomas, without authorization from the sellers, returned $3,000.00 of the original $5,528.00 deposit to the buyers. The balance of the earnest money deposit, in the amount of $2,528.00, has not been recovered from the Respondents. Rule 61J2-10.032(1), Florida Administrative Code, provides the procedure real estate brokers are required to follow when competing demands are made for funds that have been received in escrow or when a broker has a good faith doubt as to how escrowed funds should be disbursed. At no time did Respondents attempt to invoke those procedures. Kenneth G. Rehm, Petitioner's investigator, visited Respondent L T Express Realty Corp. and discovered that Respondent Thomas had abandoned his registered office. Respondent Thomas failed to notify Petitioner that he closed his real estate office at 2124 Northeast 123 Street, North Miami Beach, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered that finds Respondents guilty of the violations alleged in Counts I-VIII of the Administrative Complaint. As a penalty for these violations, the Final Order should revoke all licenses issued by Petitioner to Respondents. DONE AND ENTERED this 18th day of November, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Mr. Lynton Oliver Thomas L T Express Realty Corp. 10810 Northeast Tenth Place Miami, Florida 33161 CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1997 Henry M. Solares, Division Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record contained herein, I make the following findings of fact. The Department is the agency responsible for licensing, regulating, and disciplining real estate broker-salespersons in the State of Florida. Respondent's Florida real estate broker-salesperson license number 0389600 was originally issued on December 19, 1983. His real estate license was active in Florida between June 1, 1992 and July 1, 1993. During this period, Respondent was registered as a broker-salesman for Klein and Heuchan, Inc., located in Clearwater, Florida. Respondent's real estate license expired on or about July 1, 1993, and was activated on March 14, 1995. Between March 14, 1995 and July 31, 1995, Respondent was a broker-salesperson with Viewpoint Realty in Belleair Bluffs, Florida. During the dates at issue in this proceeding, Respondent's real estate license was invalid. In the summer of 1993, Respondent was employed as a mortgage loan consultant by Savings of America, St. Petersburg, Florida. In this position, Respondent worked directly with real estate brokers to provide financing for the sale of real estate transactions in the Tampa Bay area. On or about July 1, 1993, Respondent took steps to place his broker-salesperson license with Ahmanson Investments, the real estate division of Savings of America. On June 29, 1993, Respondent completed a Department form entitled "Request for License or Change of Status" (Request). The Request indicated that the broker employer for whom Respondent would be employed was Ahmanson Investments. After completing the "Applicant Section" of the form, Respondent submitted the Request to his supervisor, who then forwarded it to Mary Adair, the broker of record for Ahmanson Investments. The "Broker/Employer Section" of the request was completed and executed by Mary Adair. The completed Request was forwarded to the Regional Office of Savings of America to be distributed to the proper authorities. Respondent was told by Savings of American/Ahmanson Investments that the Department had been notified that Respondent's broker-salesperson license had been transferred to Ahmanson Investments. Based on representations of his employer, Savings of America, Respondent believed that the Request had been properly filed with the Department and that his real estate license was in effect. Respondent learned after August 1994, that the Request was never sent to the Department by Savings of America. As a result of Respondent's improper reliance on Savings of America to file the Request, Respondent did not file the Request with the Department. By statute, Respondent was required to notify the Department within ten (10) days of any address change or change in employer. By failing to properly notify the Department, Respondent's license ceased to be in effect when he placed it with and was employed by Ahmanson Investments in July 1993. Respondent operated as a real-estate broker-salesperson while employed with Ahmanson Investments although his Florida real estate license ceased to be in effect during the time he was so employed. In August 1994, Respondent contacted Juanel Topper of Topper Realty, Inc., about purchasing a house that was listed by Topper Realty, Inc. Respondent indicated to Ms. Topper that he was interested in purchasing the house as a personal residence for himself and his wife. On or about August 14, 1994, Ms. Topper showed the property to Respondent and his wife. Respondent visited the property three or four times after his initial contact with Ms. Topper and asked Ms. Topper several questions regarding the property. During one of his discussions with Ms. Topper concerning the property, Respondent gave Ms. Topper a business card bearing the name "Stewart S. Angel Realty, Realty CRS CRB-Developer". The card listed a toll free telephone number, a Florida telephone number, and a St. Petersburg, Florida address. Printed on the top left hand corner of the card was "Michigan- Florida". The business card given to Ms. Topper had a line drawn through the word "Florida" that was printed in the top left corner. The Respondent is a licensed real estate broker in Michigan and testified that Stewart A. Angel Realty is a Michigan company. However, the Stewart A. Angel Realty card lists only a Florida address. Although there is a toll free telephone number printed on the card, the only other telephone number on the card is a Florida number. The information on the card makes it appear that Stewart A. Angel Realty is a Florida business. In August 1994, Ms. Topper telephoned Respondent to answer several questions he had concerning the property. Ms. Topper called one of the telephone numbers shown on the "Stewart S. Angel Realty" business card that Respondent had given to her. The answering machine for that number stated that the name of the business called was "Angel Realty". Ms. Topper confirmed with the Department that Angel Realty was not registered in Florida. When Respondent initially inquired about the property, he did not reveal to Ms. Topper that he was an agent. However, on a previous occasion, Respondent had given Ms. Topper a business card which indicated that he was a conventional loan consultant for Savings of America. The business card had the following designations listed immediately after Respondent's name: "GRI, CRS, and CRB". On or about August 24, 1994, Respondent advised Ms. Topper that as an active real estate broker, he wanted to participate in the commission paid if in fact he purchased the property. Ms. Topper confronted Respondent about not revealing to her initially that he was a broker and would want to share in any commission earned as a result of the sale of the property. Respondent believed that Ms. Topper was aware that he considered himself to be a licensed real estate broker-salesperson. Respondent's belief was based on previous business dealings between himself and Ms. Topper as well as the fact that she had received Respondent's Savings of America business card. Respondent did not purchase the property which was the subject of discussions between Respondent and Ms. Topper. No agreement was ever executed by the Respondent and Ms. Topper regarding the sale/purchase of the property. Neither was any money ever exchanged between the parties regarding the sale or purchase of the property. Respondent has been a licensed real estate broker-salesperson for almost twelve years and has not had any other complaints filed against him prior to the instant case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding that Respondent has violated Sections 475.42(1)(a), 475.23, and 475.25 (1)(c) and (e), Florida Statutes; issuing a written reprimand; and imposing a $1,000.00 to be paid in accordance with this Recommended Order. RECOMMENDED this 2nd day of November, 1995, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 2nd day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3608 To comply with the requirements of Section 120.59 (2), Florida Statutes. The following rulings are made on the Petitioner's proposed findings of fact: Paragraph 1. Accepted and incorporated. Paragraph 2. First sentence rejected as not supported by competent and substantial evidence. Second sentence accepted. Paragraphs 3-9. Accepted and incorporated. Paragraph 10. First sentence rejected as not supported by competent and substantial evidence. The evidence showed that in initial discussion with Ms. Topper, Respondent did not reveal that he was agent. Second sentence accepted. Paragraph 11. Accepted. COPIES FURNISHED: Daniel Villazon, Esquire Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street #N-308 Post Office Box 1900 Orlando, Florida 32802-2465 Stewart S. Angel, Jr. Post Office Box 41465 St. Petersburg, Florida 33743-2465 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900
