Findings Of Fact At all times material hereto, Respondent has been a licensed real estate salesman with license number 0364554. On or about August 13, 1982, Richard J. and Gav Greco entered into a lease purchase agreement with James C. and Phyllis Waid for residential property located at 1685 Markham Woods Road, Longwood, Florida. The purchase price of the Waid property was $190,000 towards which the Grecos made a $10,000 non-refundable deposit and agreed to pay a monthly rental of $1000. On or about November 14, 1982, the Grecos executed an Agreement with Respondent and his wife by which the Grecos assigned all rights and privileges relating to the lease and purchase of the residence at 1685 Markham Woods Road to the Alvarados. The consideration to be given for this Agreement was a payment of $10,000 by the Alvarados to the Grecos, with $5000 payable upon signing of the Agreement and $5000 payable within six months. The Alvarados, as assignees, agreed to abide by all provisions of the lease purchase agreement and were to make their first $1000 monthly lease payment to the Waids on December 4, 1982. Respondent gave Richard J. Greco a check in the amount of $5000 dated November 14, 1982 and requested that he hold the check for a couple of days before depositing it. Greco complied with the request, but was advised on December 3, 1982 that Respondent's $5000 check had been returned unused by Respondent's bank due to the fact that Respondent's account had been closed. Respondent has never paid the Grecos any part of the $10,000 due them under the assignment executed November 14, 1982. Respondent made no monthly lease payments on the property to the Waids. By letter dated February 25, 1983, James C. Waid notified the Grecos and the Alvarados that the lease purchase agreement was in default and that the $10,000 deposit paid by the Grecos was being forfeited because the rent was in arrears. The Grecos paid the Waids an additional $4000 on March 1, 1983, which represented the unpaid lease payments, for a general release from all obligations under the lease purchase agreement. Respondent and his wife executed a promissory note on March 1, 1983 whereby they agreed to pay the Grecos $10,000 on or before March 16, 1983, but no payments have ever been made pursuant to this promissory note. The Grecos brought suit against Respondent and his wife for damages arising out of this transaction, and obtained a Final Judgment on June 30, 1983 in Case No. 83-1191-CA-03-P, Circuit Court in and for Seminole County, in the amount of $15,101.28. The Grecos have not been able to execute this Final Judgment and therefore no payments on this judgment have been made to them by the Respondent or his wife. At the time of this transaction, the Alvarados were family friends of the Grecos. Richard J. Greco entered into this transaction with Respondent primarily because of the personal acquaintance and not because Respondent was a licensed real estate salesman. However, Greco knew that Respondent was licensed and therefore assumed that he was a man of integrity who would deal fairly with him in this real estate transaction.
Recommendation Based upon the foregoing, it is recommended that a Final order be issued suspending Respondent's license for a Period of one (1) Year. DONE and ENTERED this 26th day of August, 1985, in Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Fl. 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1985. COPIES FURNISHED: Susan Hartmann, Esquire Department of Professional Regulation Division of Real Estate 400 W. Robinson St. Orlando, Fl. 32802 Ignacio J. Alvarado 5166 Glasgow Avenue Orlando, Fl. 32819 Harold Huff Executive Director Division of Real Estate 400 W. Robinson Street Orlando, Fl. 32802 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 N. Monroe St. Tallahassee, Fl. 32301 Fred Roche, Secretary Department of Professional Regulation 130 N. Monroe St. Tallahassee, Fl. 32301
The Issue At issue herein is whether respondents' real estate licenses should be disciplined for-the alleged violations set forth in the administrative complaint. Based upon all of the evidence, the following facts are determined:
Findings Of Fact At all times relevant hereto, respondent, Juan Rios, was a licensed real estate broker having been issued license number 0155126 by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent, Victoria R. Rios, is a licensed real estate broker-salesman having been issued license number 0331183 by petitioner. The Rios are husband and wife and presently reside at 855 80th Street, #1, Miami Beach, Florida. On December 13, 1982, Juan Rios obtained a six-month multiple listing agreement to sell a house located in Hacienda Estates at 11451 S.W. 33rd Lane, Miami, Florida. The agreement was executed by Rios "As Realtor" and by the property owner, Mercedes Garcia. At Mercedes' request, the Rios placed an initial sales price of $145,000 on the home. On December 15, a similar agreement was executed by Rios and Garcia on condominium unit 9B, Laguna Club Condominium, 10710 N. W. 7th Street, Miami, Florida. That property was also owned by Garcia. Although the agreement introduced into evidence does not contain Rios' signature, at final hearing Juan Rios acknowledged that he had executed such an agreement. The listing agreements provided that if the properties were leased during the term of the agreements, the listing realtor would receive a brokerage fee of 10% for such leasing. The agreement also provided that the realtors were not responsible for vandalism, theft or damage of any nature to the property. Garcia is a native and resident of Venezuela, where she owns a radio station. The two properties in question were previously owned by her father. When the father died, apparently sometime in 1982, Mercedes inherited the house and condominium. The Rios were friends of the father, and agreed to list and manage the properties as a favor to the deceased. Mercedes left the country after the agreements were signed, and has apparently not returned. Although she is the complainant who initiated this matter, she did not appear at final hearing. The house at 11451 S. W. 33rd Lane had been vandalized prior to the listing agreement being signed. According to documents introduced into evidence, the property has also been the subject of subsequent vandalisms, the nature and extent of which are unknown. A tenant was eventually procured by Mercedes' aunt in February, 1983 at a monthly rate of $800. The tenant, a Mrs. Ramirez, paid some $4,800 in rents and deposits before she was killed at the home in June, 1983. The Rios spent some $2,644.36 of the $4,800 on repairs to the vandalism and for general maintenance. They also retained a 10% commission for their services, or $480. That left $1,675.64 owed to Mercedes. No lease was apparently ever signed by Ramirez, or at least none was given to the Rios by the relative who procured the tenant. The home was eventually sold to Mercedes' aunt for $85,000.1 None of the rental monies were placed in the Rios' trust account. The condominium unit was rented in June, 1983. The tenant, Oscar Ruiz, had answered an advertisement run by the Rios in a local newspaper. Although Ruiz executed a lease to rent the unit at a monthly rate of $500, the Rios did not have a copy of same, and claimed none was kept in their records. According to the Rios, Ruiz continued to rent the unit through April, 1984, or for eleven months. Total monies collected by the Rios from Ruiz, including a $500 security deposit, were $6,000, of which $3,364.86 was spent for maintenance, utilities, two mortgage payments, and a $500 payment to the owner (Mercedes). An additional $40.33 was spent on a plumbing bill, and $600 was retained as a commission by the Rios. This left $2,724.53 owed to Mercedes. None of the rental monies were placed in the Rios' trust account. In the spring of 1984, Mercedes retained the services of an attorney in Miami to seek her monies due from the Rios. Up to then, she had received no income or accounting on the two properties. The attorney wrote the Rios on several occasions beginning in April 1984, asking for a copy of the lease on the condominium unit, the security deposit, an accounting of the funds, and all other documents relating to the two, properties. He received his first reply from the Rios on May 3, 1984 who advised him that they had attempted to reach Mercedes by telephone on numerous occasions but that she would never return their calls. They explained that rental proceeds had been used to repair vandalism damage and structural defects. When the attorney did not receive the satisfaction that he desired, he filed a civil action against the Rios on October 10, 1984. On October 26, 1984 the Rios sent Mercedes a letter containing an accounting on the two properties reflecting that she was owed $4,400.17 by the Rios. To pay this, they sent a $140 "official check," and a promissory note for the balance to be paid off in 40 monthly installments at 10% interest. They explained that their real estate business had closed, and due to financial problems, they were unable to pay off the monies due any sooner. They also asked that she instruct her attorney to drop the suit. Mercedes rejected this offer and has continued to pursue the civil action. It is still pending in Dade County Circuit Court. At final hearing, the Rios characterized their involvement with Mercedes as a "professional mistake," and one undertaken out of friendship for Mercedes' father. They acknowledged they did not use a trust account on the transactions and that they had used the $4,400 in rental money due Mercedes for their own use. They considered the excess rent proceeds to be compensation for other "services" performed by them on behalf of Mercedes. However, there is no evidence of any such agreement between the parties reflecting that understanding.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is Recommended that Juan and Victoria Rios be found guilty as charged in Counts II and III, and be found guilty of culpable negligence and breach of trust in Count I. It is further recommended that Juan Rios' license be suspended for one year and that Victoria Rios' license be suspended for three months. DONE and ORDERED this 20th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1986
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint? him? If so, what disciplinary action should be taken against
Findings Of Fact Respondent is now, and has been since September 23, 1991, a Florida-licensed real estate salesperson (holding license number 0579778). On September 30, 1993, his license became "involuntary inactive." His license was reactivated effective November 22, 1994, and remained active through September 30, 1995. Respondent's license is currently in "involuntary inactive" status. In January of 1994, Respondent was hired to (and thereafter did work) as a real estate salesperson for 4% Realty, Inc. (4%). The decision to hire Respondent was made by Frank Eckert, 4%'s broker. At no time did Respondent advise Eckert that he (Respondent) did not have an active real estate salesperson's license. On January 26, 1997, and January 27, 1997, Respondent provided $500.00 to 4% (in the form of two checks made out to 4%, one, dated January 26, 1994, in the amount $300.00 and the other, dated January 27, 1994, in the amount of $200.00). The $500.00 represented a deposit made by Respondent in connection with a proposed real estate transaction involving Respondent (as the buyer) and Mark Solowitz (as the seller). By letter dated March 3, 1994, Respondent notified Solowitz that, as of January 26, 1994, there was “on deposit in 4% Realty, Inc., Escrow account a total sum of $500.” The real estate transaction between Respondent and Solowitz was never finalized. After the transaction failed to close, Eckert returned Respondent’s $500.00 deposit to Respondent. On or about October 12, 1994, Respondent applied and interviewed for a salesperson position in the Weston office of Prudential Florida Realty (Prudential). The interview was conducted by Dorothy McCullough, the branch manager of Prudential's Weston office. Respondent made certain statements during the interview with which McCullough was "not comfortable." At the conclusion of the interview, McCullough told Respondent that she would "get back to him" and "let him know" of her decision. At no time did McCullough hire Respondent or authorize him to use Prudential's forms or stationary or to act as an agent for Prudential. On or about October 13, 1994, Respondent submitted to First Atlantic Realty (First Atlantic), on behalf of prospective tenants, an offer to lease property (located at 3350 Ivy Way in Miramar) listed by First Atlantic. Respondent purported to be acting as a representative of Prudential. When McCullough discovered what Respondent had done, she telephoned him to make sure that he understood that he had not been, nor would he be, hired by her to work for Prudential. Subsequently, First Atlantic's broker, Roger Herman, learned that the prospective tenants on whose behalf Respondent had submitted the offer had already moved into the rental property notwithstanding that their offer (which was "extremely weak") had not been accepted.3 Herman thereupon went to the rental property "to find out what was going on." He attempted to communicate with the prospective tenants, but was unsuccessful because they spoke ”very little English." He then telephoned the police. Upon arriving on the scene, the police spoke with the prospective tenants and persuaded them to vacate the premises. On or about October 24, 1994, Respondent submitted to First Atlantic, on behalf of the same prospective tenants, another offer to lease the property at 3350 Ivy Way. On this occasion, however, Respondent was acting as a salesperson in the employ of 4%. Herman responded to this second offer by contacting the Department by telephone and discussing the situation with a Department representative. During the discussion, Herman was advised by the Department representative that Respondent did not possess an active salesperson's license. Herman then telephoned Eckert and informed him of Respondent's licensure status. After speaking with Herman, Eckert telephoned the Department and received confirmation that Respondent did not have an active salesperson's license. Eckert then contacted Respondent and advised him that his employment with 4% was terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding Respondent guilty of the violations described in Conclusion of Law 41 of this Recommended Order and revoking his real estate salesperson's license for having committed said violations.DONE AND ENTERED this 28th day of April, 1997, in Tallahassee, Florida. STUART M. LERNER 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 28th day of April 1997.
The Issue Whether Respondent, based on conduct which will be set forth hereinafter in detail, is guilty of fraud, misrepresentation, false promises, and dishonest dealing, as more specifically alleged in the Administrative Complaint filed herein on September 30, 1981.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Based on admissions, Gary Steinman, Respondent herein, is a registered real estate salesman and holds license number 0084567. During times material to the allegations alleged in the Administrative Complaint filed herein, Respondent was a registered real estate broker/salesman. During the period from November, 1974, until February of 1977, Respondent was employed by Suncoast Highland Corporation (Suncoast), an owner/developer. From February 25, 1977, and extending through June of 1978, Respondent was employed by Suncoast Highland Realty Corporation, a licensed real estate corporation. For purposes herein, the two (2) corporations are the same. (Tr. 150) 2/ From November of 1974 through June of 1978, in his efforts to induce prospective purchasers to buy lots in a Suncoast development known as Shadow Run, Respondent, in his capacity as a salesman for Suncoast, made the following verbal representations pertaining to the parcels in Shadow Run: Underground utility connections would be used exclusively in the sub- division; That a recreation area would be constructed, including tennis courts and a concrete boat ramp; and That a central water system would be installed by the developer. In November of 1974, Suncoast opened and offered for sale individual residential lots in Shadow Run. Respondent, during his employment with Suncoast is not now nor has he ever served as an officer or director of that corporation. Nor did Respondent formulate or participate in the formulation of policy or development decisions for the corporation. (Testimony of Respondent and C. Thomas Peterson, the President of Suncoast since 1964.) To summarize, Respondent is charged with making certain representations to purchasers or prospective purchasers of lots in Shadow Run Subdivision which allegedly Respondent knew or should have known were false. As stated, one such representation was that underground utilities (electric and telephone) would be installed for all lots in Shadow Run. The testimony and exhibits produced in evidence reveal and Respondent admits, without dispute, that the developer, Suncoast, did make such promises and representations in its initial public offering statement dated September 16, 1974. That public offering statement was in effect when Shadow Run Subdivision opened in November of 1974. The evidence reveals, and Respondent admits that he first learned, on January 15, 1975, that the developer decided not to install underground utilities and therefore would have conventional overhead utilities. C. Thomas Peterson verified that the decision to change utilities was not communicated to Respondent until January 15, 1975. (Tr. 119-120) This fact was also verified by another Suncoast salesman, William Mayer. (Tr. 139) Sue Reed and her husband purchased a lot in Shadow Run during December of 1974, and Respondent was the salesman. Respondent admits and the evidence reveals that Respondent represented to the Reeds, prior to the sale, that underground utilities would be installed in the development. Alfred Vetrano also purchased a lot in Shadow Run and again Respondent was the salesman. Mr. Vetrano first viewed Shadow Run during early 1976. At that tine, the decision had been made by Suncoast not to install underground electric utilities. In fact, overhead utility lines were completely installed in Shadow Run Subdivision at that time. Mr. Vetrano, a trained, licensed plumber, admits that he saw the overhead lines and power poles prior to the time that he purchased his lot sometime during 1976. (Tr. pp. 51-52) Chester C. Fennell also purchased a lot in Shadow Run during approximately March of 1976. (Tr. 92) Respondent sold Mr. Fennell his lot, although from Mr. Fennell's own testimony, he was also receiving certain information about the property in Shadow Run from another salesman, whose name he (Fennell) could not recall. When Mr. Fennell purchased his lot, the decision had been made by Suncoast not to install underground utilities. In fact, Mr. Fennell admits to seeing the overhead electric utilities. James Dovin also purchased a lot in Shadow Run on April 25, 1975. Respondent and another salesman, whose name Mr. Dovin could not recall, sold Mr. Dovin his lot. (Tr. pp. 107-108) According to Dovin, Respondent represented to him during his sales presentation, on or about April 25, 1975, that all underground utilities would be utilized in the development and that a park or recreation facility, including a tennis court and a boat dock and ramp would be built on the property. Mr. Dovin could not recall precisely whether Respondent or another unnamed salesman made representations to him during April of 1975. (Tr. 110- 111) Also, Mr. Dovin could not recall from which of the two (2) offices that were selling lots in Shadow Run, that he obtained the information concerning the subdivision. Nor, in view of the seven (7) year hiatus between the time he purchased the lot and the subject hearing, could Mr. Dovin recall with any specificity, exactly what took place and who made what representations. (Tr. pp. 111-114) Mr. Dovin, like other purchasers who had been told that a central water system would be utilized in the Shadow Run Subdivision, was offered by Suncoast a $1,000.00 credit toward the purchase price for the installation of a well. Concerning the representations allegedly attributed to Respondent respecting the construction of the recreation area with a boat ramp and the tennis courts, Respondent admits to having made these representations. Suncoast's president Peterson indicated his intention to install a boat ramp and tennis courts at the subdivision; however, the actual construction date for these facilities has been postponed on several occasions. In this regard, the evidence reveals that Respondent relayed these representations to prospective purchasers as they were told to him by officials of Suncoast. William Mayer, another Suncoast salesman who was involved in the day-to-day sales presentations at Shadow Run, corroborates Respondent's testimony on the above points. From the outset, it also appears, and the evidence reflects, that the developer in fact intended to construct a central water system for the subdivision. To accomplish their purpose, Suncoast purchased the pipe for transmission of the water to the various lots but later abandoned its efforts to construct a central water system based on cost prospectives and other factors. As a result, Suncoast resold the pipe it had bought to complete the central water system at a loss to the developer. (Testimony of president Peterson) Finally, as noted above, Suncoast gave a $1,000.00 credit to all property owners who had been told that a central water system would be constructed, as a means to help defray the costs of the homeowners in getting a well drilled.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Administrative Complaint filed herein against Respondent, Gary Steinman, be DISMISSED. RECOMMENDED this 30th day of June, 1992, in Tallahassee, Florida. JAMES E. BRADWELL, 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 30th day of June, 1982.
The Issue Whether Respondent violated Sections 489.127(1)(f) and 455.227(1)(q), Florida Statutes (2004), and what discipline should be imposed.
Findings Of Fact At all times material hereto, Respondent was not licensed to engage in construction in the State of Florida. At all times material hereto, Respondent’s business did not possess a certificate of authority to practice as a contractor-qualified business. On or about October 5, 2004, Respondent contracted with Dyba to repair the roof at Dyba’s residence in Santa Rosa County, Florida. The contracted cost of these repairs was $3600, of which Respondent collected $600 from Dyba by check. On or about October 9, 2004, Respondent placed an advertisement in the Pensacola News Journal asserting that he would make repairs to kitchens, baths, decks, siding, docks, and most any hurricane damage. On June 8, 1994, Petitioner issued a Notice to Cease and Desist to Respondent for engaging in the unlicensed practice of construction contracting. The total investigative cost to the Petitioner was $166.88.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order finding Respondent guilty of violating Section 489.127(1)(f), Florida Statutes (2004), imposing an administrative fine in the amount of $5,000, and assessing costs of investigation and prosecution in the amount of $166.88. DONE AND ENTERED this 11th day of August, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 11th day of August, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Douglas Claiborne DOC No. 203745 Berrydale Forestry Camp 6920 Highway 4 Jay, Florida 32565 John Thomas, Classification Officer Berrydale Forestry Camp 6920 Highway 4 Jay, Florida 32565 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Washington, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
The Issue The issues are whether Respondent is guilty of issuing checks from his escrow account without sufficient funds so as to constitute culpable negligence, breach of trust, misrepresentation, or concealment, in violation of Section 475.25(1)(b), Florida Statutes; failing to reconcile escrow accounts, in violation of Section 475.25(1)(e) and (k), Florida Statutes, and Rule 61J2-14.012, Florida Administrative Code; employing an unlicensed person, in violation of Section 475.42(1)(c), Florida Statutes; failing to maintain business records, in violation of Section 475.5015, Florida Statutes; and violating a lawful order of the Florida Real Estate Commission by failing to pay a citation within the required time, in violation of Section 475.25(1)(e), Florida Statutes. If Respondent is guilty of any of these allegations, an additional issue is the penalty that should be imposed.
Findings Of Fact Respondent became a licensed real estate salesperson in 1987. The following year, he became a licensed real estate broker, and he has remained a broker continuously since that time. From September 30, 1996, through January 30, 2000, Respondent was the qualifying broker of Express Realty and Investments, Inc. (Express Realty). At no time relevant to this case was Novellete Faye Hanse a Florida-licensed real estate broker or real estate salesperson. At all relevant times, Ms. Hanse was the office manager of Express Realty. Respondent formed Express Realty in 1995. Respondent was the sole director and president. Ms. Hanse's son was an officer of Express Realty from the time of its formation. Respondent met Ms. Hanse in 1991. She informed Respondent that she was a licensed mortgage broker. Respondent and Ms. Hanse agreed in late 1991 to form a joint real estate/mortgage broker operation in a single office. However, when Hurricane Andrew struck in 1992, Respondent, who has been a licensed general contractor since 1978, engaged exclusively in construction until 1995. Respondent formed Express Realty to pursue the prior plan of a joint real estate/mortgage broker operation. The two businesses occupied an office building owned by Ms. Hanse, who did not charge Respondent's business any rent. The address was 6306 Pembroke Road in Miramar. Express Realty served as an escrow agent in a contract dated May 9, 1999, for the sale and purchase of real property located at 6360 Southwest 23rd Street in Miramar. In this capacity, Express Realty, held various funds in escrow for the closing. For the closing, Express Realty issued two checks payable to the closing agent, totaling $19,169.08, and drawn on its escrow account. The checks, which are dated July 15, 1999, and signed by Ms. Hanse, bear the name, "Express Realty & Investments, Inc. Escrow Account" and bear the address 6306 Pembroke Road in Miramar. The bank failed to pay these checks due to insufficient funds. After receiving a complaint that Express Realty had failed to produce these escrow funds at the closing, Petitioner's investigator conducted an audit of Respondent's escrow account. At the audit, which took place the day prior to the day scheduled, the investigator found Ms. Hanse, but not Respondent, at the Express Realty office. Despite repeated requests on and after the day of the office visit, the investigator could not obtain relevant records from Ms. Hanse or Respondent concerning the real estate transaction for which Express Realty had issued escrow checks with insufficient funds. On August 23, 1999, the Florida Real Estate Commission issued a citation to Respondent at 6306 Pembroke Road in Miramar. The citation was served on Respondent within one week of the date of issuance. The $100-citation was for the failure to give the required disclosure or notice in a real estate transaction. The citation gave Respondent 30 days to contest the citation or 60 days to pay the citation. After the deadline, the investigator contacted Respondent and asked him about the citation. Respondent stated that he had forgotten about it. When Respondent still failed to pay the citation, the investigator called again, and Respondent stated that he had mailed the money, but it had been returned due to a faulty address. Respondent paid the citation approximately four months after it had been served on him. Shortly after Respondent belatedly paid the citation, Petitioner received another complaint concerning a contract for the sale and purchase of real property located at 850 Southwest 9th Avenue in Hallandale. In this transaction, Ms. Hanse represented herself to be a licensed real estate broker, showed the property to prospects, and accepted $5000 in escrow on behalf of Express Realty. In July 2000, Petitioner's investigator conducted an audit of Express Realty's escrow account. Again, the investigator was unable to find any documents by which he could undertake an independent reconciliation of the account or otherwise document the role of Express Realty in the subject transaction. At the hearing, Respondent claimed that he was unaware that Ms. Hanse had been conducting real estate business without his authority in the name of Express Realty. Although he admitted that she was an employee of Express Realty, he disclaimed any knowledge that she had removed him from the escrow account and otherwise taken over the management of the real estate broker company. However, Respondent could not explain why, after his claimed discovery of these misdeeds in the summer of 1999, he did nothing to prevent Ms. Hanse from continuing to use Express Realty as the means by which to conduct unlicensed real estate activities, as she did a few months later. Under the circumstances, Petitioner proved that Respondent was at all times aware that Ms. Hanse was conducting unlicensed real estate activities through Express Realty.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of the allegations contained in Counts I-IV and VI of the Amended Administrative Complaint, imposing a $5000 administrative fine, and suspending his license for three years; provided, however, if Respondent fails to pay the fine in full within 180 days of the final order, his license shall be revoked without further notice. DONE AND ENTERED this 9th day of July, 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 9th day of July, 2002. COPIES FURNISHED: Jack Hisey, Deputy Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Dean Saunders, Chairperson Florida Real Estate Commission Division of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Hardy L. Roberts, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Juana Carstarphen Watkins Senior Attorney Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Wayne Wagie 11900 North Bayshore Drive, Unit No. 5 Miami, Florida 33181
The Issue The issues to be resolved in the proceeding concern whether the Respondent’s license as a Florida real estate broker should be subjected to discipline for allegedly being guilty of culpable negligence or breach of trust in a business transaction, in purported violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with licensing and regulating the practice and entry into practice of real estate brokers and salesperson. Included within that responsibility is a duty to prosecute administrative complaints upon findings of probable cause that regulated licensees have violated the laws of Florida pertaining to real estate licensure and practice, most particularly in this proceeding Section 475.25, Florida Statutes. The Respondent at all time pertinent hereto was and still is a real estate broker licensed as such in the State of Florida. He has been issued license number 0505444 in accordance with relevant provisions of Chapter 475, Florida Statutes. The Respondent is also a licensed general contractor or residential contractor in the State of Florida. On December 1, 1993, the Respondent, as President of Sandlot Construction Company, negotiated a contract between that firm, as seller, and Edward D. and Ruby M. Crawford, as buyers, whereby the buyers purchased Lot 23 at Holley by the Sea Subdivision in Santa Rose County. The purchase price for the lot paid by the Crawfords was $13,000. On that date the Respondent, as Pesident of Sandlot Construction Company, negotiated a construction agreement between Sandlot Construction Company and the Crawfords for construction of a home for the Crawfords residence on that lot. Months later, on September 8, 1994, the Crawfords paid Sandlot Construction Company $800, by check, to pay for the building of a fireplace in the house under construction by Sandlot Construction Company. When the construction was completed in the latter part of 1994, the buyer discovered that certain sub-contractors and suppliers had placed mechanics’ and materialmens’ liens on the property. This was a surprise to the Crawfords because they had paid all outstanding amounts agreed upon for the construction of the home. This situation occurred, however, because the Respondent had received the moneys for the various items of labor and materials for the construction of the house but had failed to pay the subcontractors and suppliers who had filed the subject liens on the real property in question. This difficulty arose because the Respondent diverted the funds which should have been used to pay the subcontractors and suppliers to other purposes. This situation caused the unhappy result that, in December 1994, the Crawfords were forced to pay these subcontractor and suppler lienors approximately $6,547.50 to defray their outstanding claims and to secure the satisfaction of their liens on the property. In December of 1994, the buyers also discovered that the Respondent had failed to pay the fireplace vendor, “Hearth and Home” the $800 price for the fireplace which had been ordered. The vendor built the fireplace in the home under construction and the buyers were thus obligated to pay for the fireplace. The Respondent failed to pay for the fireplace out of the construction moneys derived from the buyers which had been placed at his disposal as contractor and President of Sandlot Construction Company, to pay for all construction costs. The fireplace vendor filed a mechanics lien against the property for failure to pay the $800 claim. On December 20, 1994, the buyers thus were forced to pay an additional $800 to the Hearth and Home Company in order to satisfy the lien placed on their real property. Consequently, the buyers, as a result of the Respondent’s use of their funds for other purposes, which may even have included other aspects of the construction, were forced to pay the subcontractors and suppliers $7,347.50 more for the construction of the home than they had contracted with the Respondent to pay. The Respondent acknowledged that he was obligated to pay this amount of money to the subcontractors, suppliers and materialmen involved in the liens and that he simply had run out of funds because the funds had been used for other purposes (it was not proven that he diverted the funds for his personal use). The Respondent has thus acknowledged that he owes the Crawfords this sum of money, fully intends, and prior to this proceeding had assured them he intended, to re-pay them. He has not done so as yet. The Respondent, and the above-named company of which he is President, is in straitened financial circumstances. Nevertheless, at the time the Respondent had the custody and control of the construction funds in question and failed to use them for the proper purpose of paying the subcontractors, suppliers and materialmen who filed the liens, he knew that the funds in question should have been used for the proper purpose and failed to do so, causing the above-referenced pecuniary loss to the buyers.
The Issue Whether Respondent engaged in the unlicensed practice of contracting in violation of Section 489.127, Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of contractors in the State of Florida pursuant to Section 20.42 and Chapters 455 and 489, Florida Statutes. On June 7, 2005, Harry Lee Wilson signed a proposal on behalf of Wilson Construction and Roofing to perform repairs on a home owned by Tony Wright at 2126 Evergreen Avenue, Jacksonville, Florida. The proposal consisted of a two-page list of repairs to be performed, including installation of doors, plumbing, kitchen cabinets and sheetrock; repair of several holes, walls, windows and floors; painting and installation of a wall. The proposed cost for the job was $7,595.00, with $3,200.00 to be paid as a down payment, $2,200.00 to be paid halfway through, and the balance to be paid when the job was completed. Mr. Wilson represented to Mr. Wright that he was a licensed contractor and had been for 20 years. He had business cards and t-shirts that advertised "Wilson Construction and Roofing." His license, however, was an occupational license issued by the City of Jacksonville. At no time material to these proceedings was Mr. Wilson registered with or certified by the State of Florida. Likewise, Wilson Construction and Roofing did not possess a certificate of authority to practice as a contractor qualified business. No evidence was presented to establish that Mr. Wilson held any sort of competency license issued by the local jurisdiction. Mr. Wright accepted the proposal and, in all, paid $5,000.00 to Mr. Wilson for his services. On September 21, 2005, Mr. Wilson wrote to Mr. Wright representing that he had completed the "first proposal," i.e., the first page of the work under the contract. In his letter, he claimed that Mr. Wright had defaulted on the job because of work done by another contractor and that additional funds would be needed to complete the work. Mr. Wright was not pleased with the quality of work performed on the job and stopped paying Mr. Wilson. Some of the work had to be redone by another contractor. For example, the plumbing was not installed correctly; the countertop was not level; a weight-bearing wall was braced incorrectly; and drywall was applied over the light switches. Mr. Wright was under the impression that the work by Mr. Wilson was not inspected because the funds were not coming from a bank. Inspection was only performed when the job was finished by the second contractor. Mr. Wilson admitted that he has been doing construction work for 20 years and did not believe a state license was necessary. He believed that his occupational license was all he needed to perform construction work. Mr. Wilson claimed that he did not perform any plumbing work for Mr. Wright or the amount he did was minimal. However, Mr. Wilson's proposal to Mr. Wright clearly includes plumbing work among those items to be performed. Whether or not he actually did plumbing work on the job, Mr. Wilson negotiated a contract to perform such work. There was no evidence presented that Mr. Wilson was offering to perform or performing any contracting services under the supervision of any licensed contractor. The Department incurred investigative costs, excluding any costs associated with an attorney's time, in the amount of $401.83.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which finds that Respondent violated Section 489.127(1)(f), Florida Statutes; That an administrative fine of $5,000.00 be imposed; and That costs of investigation and prosecution in the amount of $401.83 be assessed. DONE AND ENTERED this 9th day of November, 2006, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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.state Filed with the Clerk of the Division of Administrative Hearings This 9th day of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Harry Wilson Wilson Construction and Roofing 12450 Biscayne Boulevard Apartment 415 Jacksonville, Florida 32218 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
