The Issue Whether Respondent committed the violation alleged in the Administrative Complaint? him? If so, what disciplinary action should be taken against
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a Florida-licensed real estate salesperson. He holds license number 0186760. From October 1, 1991, through September 30, 1993, Respondent's license was inactive. His address of record during this period was 290 174th Street L11, North Miami Beach, Florida 33160. On October 1, 1993, Respondent's license became involuntarily inactive due to non-renewal, and it remained in involuntary inactive status through August 11, 1996. Respondent's address of record during this period remained 290 174th Street L11, North Miami Beach, Florida 33160. On June 1, 1995, after having successfully completed a license reactivation course at the Gold Coast School of Real Estate,1 Respondent went to The Keyes Company to apply for a position as a sales associate. The Keyes Company is now, and was at all times material to the instant case, a corporation registered in Florida as a real estate broker. During his visit to The Keyes Company, Respondent completed (with the assistance of a Keyes Company secretary) and signed various forms, including a Department-issued "Request for License or Change of Status" form (400.5 Form). The 400.5 Form contained three sections: Section A, the "action requested" section; Section B, which was to be "completed by [the] licensee applying for [the] change"; and Section C, which was to be "completed by [the] broker/employer if the applicant [was] requesting active salesperson or broker-salesperson status." On the reverse side of the 400.5 Form were instructions, which indicated, among other things, that if the licensee was seeking to renew his or her license, the 400.5 Form had to "be accompanied by the required fee." In Sections A and B of the 400.5 Form, Respondent indicated, among other things, that he was seeking to renew his license and gain active status and that his "residence address" was 2182 Northeast 186th Terrace, North Miami Beach, Florida 33179. Although there was a box on the top of the form that he could have checked to reflect that this was a "change [of] residence address," he failed to do so. After completing Sections A and B, Respondent signed and dated the partially completed 400.5 Form. The secretary who assisted Respondent in filling out the 400.5 Form (Secretary) told Respondent that The Keyes Company would complete Section C of the form and then mail it to the Department for processing. She further advised Respondent that she would let him know in a few days "exactly how much [he] would have to pay" the Department to obtain the "[c]hange of [s]tatus" he was requesting. Three or four days later, the Secretary contacted Respondent and informed him that he had to pay a $90.00 fee to the Department. Respondent relied upon the information that the Secretary had given him regarding the amount of the fee he had to pay. He made no effort to contact the Department to verify the accuracy of the information. On June 5, 1995, Respondent wrote a $90.00 check, payable to the Department, and left it with the Secretary for her to mail, along with the completed 400.5 Form, to the Department. The Keyes Company's payroll clerk, Rosa Miguelena, thereafter contacted the Department by telephone to confirm that $90.00 was the amount that Respondent had to pay. The person with whom she spoke told her that the total fee for late renewing a license was $90.00 ($65.00 for the renewal and a $25.00 late fee). The completed 400.5 Form (Section C of which had been filled in and signed on June 9, 1995, by Ray Shaw, a Vice President of The Keyes Company) and the $90.00 check, as well a copy of Respondent's reactivation course completion certificate, were subsequently sent to the Department. The check was deposited by the Department on June 19, 1995. The $90.00 was insufficient to cover the amount necessary to renew and activate Respondent's license for the upcoming two-year renewal cycle commencing October 1, 1995.2 Accordingly, on or about June 23, 1995, the Department sent, by United States Mail, a letter to Respondent, which read as follows: We are returning the attached for the following reasons: (X) Request not accompanied by the total fee of $153.00. You need to send additional $63.00 in order for us to process your renewal. (X) To be credited for the fee accepted, THIS DOCUMENT MUST BE RETURNED TO THE DIVISION OF REAL ESTATE. PLEASE RETURN ALL OF THE ATTACHED, ALONG WITH A COPY OF THIS LETTER. The letter was mailed to the address (2182 Northeast 186th Terrace, North Miami Beach, Florida 33179) that Respondent had indicated, on the 400.5 Form, was his "residence address." At the time the letter was mailed, Respondent still resided at this address. Nonetheless, Respondent never received the letter in the mail. This is not the only time that mail addressed to Respondent at 2182 Northeast 186th Terrace, North Miami Beach, Florida 33179 has not been delivered to him by the United States Postal Service. It has been a recurring problem. Had Respondent received the letter, he would have taken the additional steps needed to renew and activate his license. Not having heard anything from either the Department or The Keyes Company regarding the matter, he erroneously assumed that his license had been renewed and activated, and he acted accordingly. On or about January 18, 1996, Respondent, acting in his capacity as a Keyes Company sales associate, procured Vito Verzura as a buyer for real property located in Dade County, Florida that was owned by Jack Poulas (Property). On or about February 1, 1996, The Keyes Company issued to Respondent a check in the amount of $676.00 as commission for his role in the Vito Verzura/Jack Pulos transaction. On or about June 25, 1996, Respondent, acting in his capacity as a Keyes Company sales associate, procured listing agreements with Vito Verzura regarding the Property. The listing agreements provided that the listing agent(s) would be paid 10% of the sales price. In late June or early July of 1996, after speaking with a Keyes Company secretary who questioned whether he was associated with the company, Respondent telephoned the Department to inquire whether his license was active. The Department representative with whom he spoke advised him that the Department's records revealed that his license had never been activated. Respondent then contacted The Keyes Company to discuss the matter. He expressed his desire to have his license activated as soon as possible. The Keyes Company told Respondent that he needed to pay the Department an additional $125.00. On or about July 9, 1996, Respondent wrote a check in the amount of $125.00, payable to the Department, which he gave to The Keyes Company to deliver to the Department. On that same date, he also signed (but did not date) another Department-issued "Request for License or Change of Status Form." The check, along with the signed form (Section C of which was left blank), were subsequently sent to the Department. The Department received these items on or about August 12, 1996. It deposited the check on August 14, 1996. Because Section C of the "Request for License or Change of Status Form" was left blank, the Department changed the status of Respondent's licensure, effective August 12, 1996, to voluntary inactive rather than to active. The Department sent Respondent a letter informing him of the change. The letter contained the following "explanation": The Division of Real Estate computer records do not reflect you to be in the employ of a licensed real estate broker, a registered broker corporation or broker partnership, or an unlicensed owner developer at this time. Please have the attached form 400.5 completed by both you and your employer and returned in the enclosed envelope if your license status should be shown as active. On February 27, 1997, the Department received from Respondent a completed "Request for License or Change of Status Form," which reflected that he was employed by Gerard International Realty, a duly registered broker. After receiving this form, the Department activated Respondent's license. At no time prior to February 27, 1997, did Respondent hold a valid and current active real estate salesperson license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a final order finding Respondent guilty of the misconduct alleged in the Administrative Complaint and disciplining him therefor by reprimanding him and fining him $750.00. DONE AND ENTERED this 14th day of April, 1999, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1999.
Findings Of Fact Respondent holds real estate broker license no. 0186475, and was so licensed at all times relevant to this proceeding. However, he did not act in his licensed capacity in any of the transactions discussed herein. Respondent was involved in a corporate business venture with Donald M. and Darlene Pifalo. He believed the Pifalos had improperly diverted funds from the corporation and filed suit accordingly. In December, 1980, while this suit was pending, Respondent filed a notice of lis pendens against various properties owned by the Pifalos. This action encumbered property in which the Pifalos' equity greatly exceeded Respondent's alleged loss in the business venture. There was no evidence that the Pifalos were planning to leave the jurisdiction or would be unable to make any court ordered restitution. Further, the encumbered property was not at issue in this litigation. Finally, Respondent filed the notice of lis pendens on his own volition and not on the advice of counsel. The notice was subsequently dismissed.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of violating Subsections 475.25(1)(a) and 475.42(1)(j), Florida Statutes (1979), and fining Respondent $500. DONE and ENTERED this 16th day of April, 1982 in Tallahassee, Florida. R. T. CARPENTER 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 16th day of April, 1982.
The Issue The issue is whether the Respondent is entitled to the issuance of a state license as a yacht and ship broker.
Findings Of Fact Ronald DeMarco is 52 years old, and a resident of Coral Springs, Florida. He is a co-owner of International Yacht Brokers, Inc., in Miami Beach. The company which was opened approximately six or seven years ago, is owned by Mr. DeMarco and a co-owner, Angela Chiarello. Mr. DeMarco moved to South Florida from New York in 1986 and, in May 1991, became a licensed ship and yacht broker. The Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Department) is the state agency which administers the Yacht and Ship Brokers' Act, Sections 326.001-326.006, Florida Statutes. Mr. DeMarco was hired, by Anthony Galgano, as an employee of Hidden Harbour Marina. Mr. Galgano was Mr. DeMarco's wife's cousin's brother. After Hidden Harbour Marina was sold, Mr. DeMarco continued to work for the new owner. Mr. Galgano moved to another office at the end of the same yard. Mr. DeMarco entered into a plea agreement signed by a United States District Judge for the Northern District of Ohio, dated April 29, 1996. In the agreement, which was received as Petitioner's Exhibit number 3, Mr. DeMarco acknowledged that the government could prove, beyond a reasonable doubt, that he conspired with Anthony Galgano and Lauren Freidman to steal and obtain by fraud, alter the hull identification number, and sell a 28' Regal boat. In June 1990 Mr. DeMarco notarized false documents purporting to transfer title to the 28' boat. In the plea agreement, Mr. DeMarco also acknowledged his involvement, with Angela Chiarello, Anthony Galgano, and others, in a conspiracy to steal, alter the identity of, and sell in interstate and foreign commerce a 36' Regal Commodore boat. According to the affidavit, Mr. DeMarco directed his co- defendant, Ms. Chiarello, to notarize documents related to the transfer of the 36' boat, in June 1991. Mr. DeMarco testified that he was 45 years old when he notarized the document at issue. Despite the description of his activities in the plea agreement, Mr. DeMarco also testified that he was only charged with one count of notarizing a fraudulent document, that related to the 28' Regal, and that he only pleaded to that one count. (T. 192.) As a result of the plea agreement, in 1996, Mr. DeMarco was placed on probation for three years and fined $2,000. The Judgment, dated April 29, 1996, was received in evidence as Petitioner's Exhibit number 2. On June 24, 1998, Mr. DeMarco's probation was terminated early. According to Mr. DeMarco, he accepted the plea agreement because he did not have money for an attorney, although he did have a public defender. He also testified that he spoke to Peter Butler, the head of the section of the Department which regulates ship brokers, while he was considering accepting the offer of a plea. Mr. Butler told Mr. DeMarco that his license would be the subject of a Notice of Intent to Revoke as a result of a plea. According to Mr. DeMarco, Mr. Butler also told him that he would get his license back " . . . as soon as all my commitments were done, probation and community service and stuff like that . . . ." (T. 188.) Mr. Butler testified, refreshing his memory with contemporaneously taken notes of their telephone conversation on June 29, 1998, that he told Mr. DeMarco that anyone could apply but he should review applicable rules and statutes, and that the Department would review his application. He denied telling Mr. DeMarco that he would be eligible to get his license back when his probation was terminated. Mr. Butler testified that some convicted felons are licensed by the state as yacht and ship brokers. Of approximately 3,800 licenses issued, with 1,700 currently active, Mr. Butler would guess that fewer than 100 of those licenses are issued to persons with felony convictions. By error, Mr. Butler issued a license to a convicted felon who was living in a halfway house at the time. After Mr. DeMarco brought that matter to Mr. Butler's attention, the Department issued a Notice of Intent to Revoke the license. (T.62-6 and 95.) Under the Yacht and Ship Brokers' Act, the Department does not regulate the selling and buying of new boats of any size or used boats equal to or smaller than 32 feet or in excess of 300 gross tons. The buying or selling of one of the vessels described in Mr. DeMarco's plea agreement would not be regulated under the Act. In his cross-examination of Peter Butler, the Respondent's counsel also established that Mr. Butler did not check Mr. DeMarco's letters of reference, and could not refute their representations concerning Mr. DeMarco's good moral character and integrity. Five of the eight letters of reference submitted to the Department by Mr. DeMarco were dated prior to the date of his conviction. Mr. Butler noted, in his testimony during cross- examination, that Rule 61B-60.003(3)(a)7., Florida Administrative Code, provides in pertinent part: Except as provided in sub-sub-paragraph 6.d. of this rule, no information relating to criminal, administrative or civil actions shall be considered if more than 5 years has elapsed from the satisfaction of the terms of any order, judgment, restitution agreement, or termination of any administrative or judicially-imposed confinement or supervision of the applicant, whichever is more recent. Any action, proceeding, or grievance filed against the applicant, individually or otherwise, which relates to the applicant's prospective duties, responsibilities, and obligations of licensure under chapter 326, Florida Statutes, may be considered with no limitation as to time. In reviewing Mr. DeMarco's application, Mr. Butler determined that the application failed to demonstrate that the applicant is of good moral character. He also determined that not more than five years have elapsed subsequent to the completion of his "penalty phase" and that his crime was "industry-related". (T. 66.) Following a review by a staff investigator, Mr. Butler's recommendation to deny a license is reviewed in the Department by someone on the legal staff, the bureau chief, and ultimately signed by the Division Director. (T. 52, 53 and 93.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying the Respondent's application for a yacht and ship brokers' license. DONE AND ENTERED this 22nd day of July, 1999, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 22nd day of July, 1999. COPIES FURNISHED: William Oglo, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Fred C. Bamman, III, Esquire Bamman and Guinta Post Office Box 399 Pompano Beach, Florida 33061 Philip Nowick, Director Florida Land Sales, Condominiums and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
Findings Of Fact Respondent, Hillard J. Meinstein, is the holder of real estate salesman license number 0174789 issued by petitioner, Department of Professional Regulation, Florida Real Estate Commission. The license was issued on September 1, 1981 and remains current as of this date. On or about March 16, 1982 the circuit court for Hillsborough County, Florida entered an order accepting a plea of nolo contendere from one Hillard J. Meinstein for the offense of conspiracy to traffic in cocaine. Adjudication of guilt was withheld and Meinstein was placed on probation for 15 years and required to pay a $10,000 fine to the Hillsborough Country Sheriff's Office within one year after date of sentence. A certified copy of the order has been received in evidence as petitioner's exhibit 3. It was not disclosed whether the respondent and the defendant in the above case were the same individuals. On April 30, 1982 the supervisor for application certification of the then Board of Real Estate wrote the sheriff of Hillsborough County and requested him to search his records to determine if a Hillard Jeffrey Meinstein had been arrested by his agency for various charges including conspiracy to traffic in cocaine. The letter also indicated that Hillard Jeffrey Meinstein was an applicant for licensure as a real estate salesman. The response of the sheriff, if any, was not disclosed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint be DISMISSED with prejudice. DONE and ENTERED this 31st day of January, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 31st day of January, 1984. COPIES FURNISHED: Gary Lee Printy, Esquire P. O. Box 1900 Orlando, Florida 32802 Richard J. R. Parkinson, Esquire 602 East Central Avenue Orlando, Florida 32801
Findings Of Fact The Defendant was at all times material herein registered with the Florida Real Estate Commission as a real estate salesman. On May 3, 1974, the Acting State Attorney filed before the Circuit Court in and for Broward County, Florida an Amended Information charging the Defendant with the offenses of the sale of unregistered securities and the sale of unregistered securities without being registered as a dealer or salesman in violation of Florida Statutes 517.02(1), 517.07, and 517.12(1). On October 11, 1973, the Defendant entered a plea of N0L0 CONTENDERE to both offenses and Judge Humes T. Lasher, Circuit Judge in and for the Seventeenth Judicial Circuit, Broward County, Florida, entered an order withholding adjudication of guilt and placed the Defendant on probation for a period of two years. See Commission's Exhibits 1 and 2. Counsel for the Commission takes the position that the Defendant's entry of a NOLO CONTENDERE plea amounts to an admission and therefore a violation of Chapter475.25(1)(a) and (e), Florida Statutes. The Defendant contrary to the position taken by the Commission, avers that no such inference should be deduced from his entry of a NOLO CONTENDERE plea. He further contends that the plea was entered only because of his wife's mental condition and the extreme hardships brought about by above cited charges, and further that he had never been found guilty or the convicted of any crime in this or any other state. In mitigation, the Defendant testified to his honorary and exemplary military service. Chapter 475,25 sets forth grounds for revocation or suspension of a registrant's license with the Florida Real Estate Commission. Subsection 1(a) thereof provides in pertinent part that a registrant's license may be suspended based upon a finding of fact showing that the registrant has: (a) Been guilty of fraud, misrepresentation, concealment, false promises etc. in this state or any other state, nation or territory. . . or (e) Been guilty of a crime against the laws of this state or any other state or of the United States involving moral turpitude, or fraudulent or dishonest dealing; and the record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of this state, shall be admissible as prime facie evidence of such guilt. On April 30, 1975, Defendant, through his attorney, filed a Motion to Terminate Probation, Adjudicating Petitioner Not Guilty and Set Him Free, which was denied by Judge Lasher on May 12, 1975. In denying said motion to terminate probation, the Judge stated that the Defendant had failed to abide by the rules set forth by the Parole and Probate Commission. No further evidence was presented respecting this motion and/or its disposition. Based on the foregoing Findings of Fact, I hereby make the following: CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. The burden of proving that a licensed real estate salesman has violated the Real Estate Licensing Law lies with the Florida Real Estate Commission or its representative. State ex rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Florida 1973). Insufficient evidence was offered at the hearing to establish that the Defendant based on the allegations contained in Counts 1 and II of the Administrative Complaint filed herein, has engaged in conduct violative of Florida Statutes 475.25(1)(a) and (e). The conduct here alleged and claimed to be violative of the above cited statutes if proven, must rest on a showing that the Defendant has "been guilty of a crime. . ." From the evidence here presented, there was no such showing but rather there was only a showing that an order was entered withholding adjudication of guilt. In view thereof, and since there was no showing that the Defendant has "been guilty of a crime" as set forth in Chapter 475, Florida Statutes, insufficient evidence was offered to establish the allegations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Administrative Complaint filed herein be dismissed in its entirety. RECOMMENDED this 1st day of April, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce I. Kamelhair, Esquire 2699 Lee Road Winter Park, Florida 32789 William B. Seidel, Esquire Justice Building 524 South Andrews Avenue Ft. Lauderdale, Florida 33301
The Issue The issue in this case is whether the real estate license issued to the Respondent, Kathi L. Kitts, should be revoked or otherwise penalized based upon the acts alleged in the Administrative Complaint.
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, I make the following findings of fact: Brickell Grove Realty Corporation ("Brickell Grove") is a licensed real estate brokerage corporation in Florida having been issued license number 0245921. From at least May 1988 through September 1, 1988, the sole qualifying broker for Brickell Grove was Frederick Morrison, Jr. (Morrison). At some point in mid to late 1988, (the exact date was not established by competent substantial evidence) Morrison was hospitalized with a terminal illness and his subsequent involvement in the real estate brokerage business was limited. Morrison died on September 1, 1988. Respondent, Kathi L. Kitts (formerly known as Kathi L. Abassi), was licensed by Petitioner as a salesman with Brickell Grove beginning on or about August 13, 1986. Respondent completed the required course for a real estate broker's license in April of 1988. On September 19, 1988, she passed the state exam required to obtain a broker's license. The evidence did not establish when Respondent first filed an application for a broker's license. After passing the exam in September of 1988, Respondent submitted an application which she thought would enable her to become the sole qualifying broker for Brickell Grove. The evidence did not establish the date that application was submitted. That application was not signed by the qualifying broker of Brickell Grove and/or the owner so it could not serve to qualify Respondent as the sole qualifying broker for Brickell Grove. On October 1, 1988, Petitioner issued Respondent a broker/salesman license as an employee of Brickell Grove. That broker/salesman license was revoked in November of 1988 when it was discovered that the corporate registration of Brickell Grove was cancelled effective September 30, 1988 as a result of the death of Morrison and the non-renewal of the corporate license. The exact date of the revocation was not established by competent substantial evidence but it was apparently on or after November 1, 1988. Prior to receiving the revocation notice, Respondent was advised by an investigator employed by Petitioner that her application to become the qualifying broker was deficient because it was not signed by the owner or broker. On October 20, 1988, Respondent filed another application to become licensed as the qualifying broker for Brickell Grove and to change the name on her license from Kathi Abassi to Kathi Kitts. This second application contained the signature of the owner of Brickell Grove. On November 4, 1988, Respondent sent a letter to the Division of Real Estate indicating that Mr. Morrison was seriously ill and that it was urgent that her application to be the active broker for Brickell Grove be approved as quickly as possible. Respondent did not, however, discover that Mr. Morrison had died on September 1, 1988, until sometime in the middle of November when she was advised by Petitioner's investigator. Petitioner approved Respondent's second application to become the qualifying broker for Brickell Grove on November 22, 1988. The approved broker's license was backdated to establish an effective date of October 20, 1988. Effective October 20, 1988, the corporate registration of Brickell Grove Realty Corporation was reinstated upon the Respondent becoming its sole qualifying broker. Respondent admitted that at least during the time period from September 1, 1988 through October 20, 1988, she operated as a salesman in the office of Brickell Grove Realty without any supervision from another broker in the office. However, no competent substantial evidence was offered to establish the nature or extent of business conducted by that office or by Respondent during this time period. Respondent did not open bank accounts or advertise as a broker until after October 20, 1988. While Respondent contends that she thought Mr. Morrison was continuing to carry on as the active broker for Brickell Grove during the time period he was hospitalized and continuing through November (after his death), she admitted that she only saw him on occasion and could not recall when he was last in the office. The limited contact between Respondent and the licensed broker for Brickell Grove is reflected by her lack of knowledge of his death until almost two months after it occurred. While there is hearsay testimony that Mr. Morrison was in the hospital for several months prior to his death and that his involvement with Brickell Grove Realty during the several months preceding his death was limited, or nonexistent, no competent substantial evidence was offered to establish the nature or extent of the business conducted by Respondent without the benefit of supervision by a licensed broker during the time period prior to September 1, 1988. Petitioner had previously initiated an investigation into unlicensed practice by one of the owners of Brickell Grove, Mahmoud Abassi (Respondent's former husband) in July of 1986. That investigation resulted in an August 29, 1986 affidavit executed by Mahmoud Abassi to cease and desist unlicensed real estate brokerage activity. However, no competent substantial evidence was offered to prove any involvement by Respondent in the activities which led to the execution of that affidavit nor was any evidence offered to show that Mahmoud Abassi was actually running Brickell Grove at any point subsequent to the execution of the affidavit. Moreover, no competent substantial evidence was offered as to Respondent's activities and/or supervision during the period from the execution of the affidavit until September 1, 1988.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a Final Order finding Respondent, Kathi Kitts, guilty of operating as a broker without a license during the period from September 14, 1988, to October 1, 1988, reprimanding her and placing her on probation for one year. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of December 1989. J. STEPHEN MENTON 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 issue for consideration in this case is whether the Respondent's license as a real estate broker in Florida should be disciplined because of the matters set out in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Florida Real Estate Commission was the state agency responsible for the regulation of the real estate profession and the licensing of real estate professionals in Florida. The Respondent, Gabor A. Banfi, was licensed as a real estate broker in this state and has held a real estate license since 1981. In April, 1990, a claimant sued Banfi Realty, Inc., located at 807 NE 8th Street, Delray Beach, and owned by the Respondent, for allegedly concealing defects in a property he had sold. The claimant secured Final Judgement against Banfi Realty in August, 1990, amended in September, 1990 as to amount only. In November, 1990, the claimant sued Respondent indiovidually. Before that suit was judicially resolved, in January, 1991, Respondent and the claimant entered into a stipulation whereby Respondent would pay a lesser amount than was called for in either the suit against him or in the judgement against his company. Thereafter, in May, 1991, the claimant also got a judgement against the Respondent, and, after Respondent had paid 3 monthly payments of $25.00 each called for under the terms of the stipulation, on August 1, 1991, the claimant notified the Commission of a possible recovery fund claim. She asserted that her diligent search and inquiry had failed to locate any assets of Mr. Banfi to satisfy the final judgement. By Final Order dated October 16, 1991, the Commission paid the claimant $866.25 as the amount due from Respondent, and, coincidentally therewith, suspended Respondent's license as a broker until such time as he reimbursed the fund in full the amount paid the claimant. The certificate of service on this Final Order reflects that a copy was sent by US Mail to the Respondent at his Banfi Realty, Inc. address, 807 NE 8th Street, Delray Beach, on October 21, 1991. The evidence shows, however, that in April, 1990, approximately 18 months prior to the entry of the Commissions Final Order suspending his license, Respondent closed Banfi Realty, Inc. and went to work with Prudential Florida Realty in July, 1990. At that time, Respondent signed a request to register the Prudential Florida Realty as his employer and, to the best of his knowledge, the management of that firm was to forward this form to the Commission. Respondent believed this was done. However, he received neither confirmation of the change nor notice it had been denied. This did not disturb him, however, since his understanding was that no acknowledgment was sent out. He had renewed his license in April, 1990, and was not due to again renew until April, 1992. Petitioner failed to present any evidence to indicate whether Respondent's change of address was ever received by the Commission. The documentation in his licensure file kept at the Commission reveals that in February, 1992, Geraldine Spinella, Vice President of the Prudential office where Respondent went to work, wrote to the Commission and enclosed what purported to be a copy of the form 400.5 sent in on or about July 2, 1990, reflecting The Prudential Florida Realty, 160 SE 6th Avenue, Delray Beach, as his new employer. No evidence in rebuttal was submitted by the Department. Respondent unequivocally denied having received any notice of the Fund payment from the Commission. It is noted that approximately 30 days after Respondent signed the form 400.5 in July, 1990, The Prudential Florida Realty changed its name to FMT Holding Ltd., t/a The Prudential Florida Realty, and a second form 400.5, reflecting Respondent's new business address was sent in. In February, 1992, Respondent learned from an associate that the then most recent Commission newsletter reflected the Final Order regarding the Fund pay out and his resultant license suspension. On February 12, 1992, Respondent sent in his check to reimburse the Fund in full for its pay out. The accompanying letter reflected Respondent's home address of 2001 SW 15th Avenue in Boynton Beach. Nonetheless, the Department's letter of acknowledgment dated February 26, 1992 was sent to the invalid Banfi Realty, Inc. address. At the same time he sent in his repayment, Respondent had Prudential send in another request for employee registration change, (Form 400.5), which included a copy of the prior form sent in previously. (See FOF #6, supra.) Thereafter, Respondent's license was reinstated and renewed for 2 years on April 1, 1992. Respondent admits that during the period his license was suspended, he continued to operate and do business as a broker. He claims not to have known of the suspension, however, and asserts in support of his claim that he had been elected President of the Delray Beach Board of Realtors and consciously would have done nothing to jeopardize his ability to serve in that position or to jeopardize his ability to earn his living in the real estate profession. In late July, 1992, in response to an inquiry by Prudential, Respondent was advised that his address change had been entered on the Commission records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered concluding that Respondent had operated as a real estate broker in Florida without a valid and current active license therefor, but assessing no further penalty because of the mitigating circumstances shown to exist regarding notice to him of the existence of the suspension. RECOMMENDED this 31 day of August, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 31st day of August, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3326 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 3. Accepted and incorporated herein. Accepted and incorporated herein. Accepted but noted that the service was made to Respondent's former address, a change from which had previously been noticed to the Commission. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. Copies furnished: James H. Gillis, Esquire DPR - Division of Real Estate Suite N-308, Hurston Building 1400 W. Robinson Street Orlando, Florida 32801-1772 Gabor A. Banfi FMT Holding Company, Ltd. The Prudential Florida Realty 160 South 6th Avenue Delray Beach, Florida 33483 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact The Department of Professional Regulation, Division of Real Estate (Petitioner) is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints filed pursuant to Chapters 455 and 475, Florida Statutes, and rules promulgated pursuant thereto. At all times material hereto, Stanton S. Bank (Respondent) was a Florida licensed real estate broker, having been issued license number 0003707, with an address of Bank Enterprises, Inc., 1959 NE 148th Street, North Miami, Florida 33131. Respondent was initially licensed in or around the mid-1970s. On or about April 17, 1992, the United States Attorney for the Southern District of Florida charged Respondent by Information with a felony, which was filed in the U.S. District Court, Southern District of Florida, Case No. 92- 0233-CR-KEOE, for filing a false 1985 Form 1040 U.S. Individual Income Tax Return in violation of Title 26, United States Code, Section 7206(1). Respondent falsely represented his distributive share of income from a corporation called Aqua Shield, Corp. On or about June 29, 1992, Respondent entered into a plea agreement with the U.S. Attorney's Office on the charge, agreeing, inter alia, to plead guilty to the Information. No promises regarding sentencing were made to Respondent in the agreement. On or about September 16, 1992, Respondent pled guilty to the criminal offense and was sentenced as follows: suspended sentence and three years probation with special conditions, among them, performing 100 hours of community service and paying the cost of prosecution, not to exceed $2,000. Approximately 28 days later, on or about October 14, 1992, Respondent informed Petitioner of his conviction of the felony. In 1978, Respondent and Robert "Bud" Smith (Smith) formed a business called Aqua Shield Corp. which was engaged in the business of painting and waterproofing. Smith was the President, owning 51 percent of the stock, and Respondent was the Treasurer, owning 49 percent. Respondent's main responsibility was developing the business, whereas Smith controlled the payroll and handled most of the financial matters. By 1978, Respondent was no longer actively involved in real estate but kept his license active. Subsequently, in 1979 Respondent was licensed by the State of Florida as a general contractor. His contractor's license was not needed for the work performed by the business. Also, very little of the business was construction related. Aqua Shield employed a certified public accountant, Glenn Lapides (Lapides), whose services Smith had used in his prior business. Smith and Lapides developed a scheme whereby the salaries of Smith, Respondent and employees of the business would periodically be paid in cash, instead of by check. Smith would selectively choose certain checks that the business received for services rendered and take them to Lapides who, in turn, would give Smith cash, after deducting nine percent for himself (Lapides). Smith would then pay himself, Respondent and the employees' wages in cash. On some occasions, after Smith selected the checks, Respondent would take the checks to Lapides and exchange them for cash. Respondent knew that the scheme was illegal. In December 1988, a U.S. Internal Revenue Service (IRS) agent, investigating Lapides, visited Aqua-Shield Corp. The IRS agent had no knowledge of the scheme. Immediately after the agent's visit, Respondent informed Smith that the illegal activity had to stop. Shortly thereafter, Respondent began to cooperate with the IRS and convinced Smith to do the same, with both fully cooperating throughout the investigation. For almost four years Respondent provided documents and testimony to the IRS. Smith cooperated until his death from cancer. Respondent resigned from Aqua-Shield Corp. in 1990. During the IRS investigation, Respondent filed amended tax returns and paid the IRS in interest and penalties approximately $40,000 to $45,000. Even though Respondent was charged in the Information for filing a false 1985 federal tax return, his 1986 and 1987 returns were also false. Presently, Respondent actively uses his general contractor's license. He operates a highrise waterproofing business, restoring homes and buildings damaged by Hurricane Andrew. The business is licensed to operate through his contractor's license which is the sole license for the business. Respondent employs approximately 42 people on a full-time basis. As his probation has not expired or been terminated on his criminal conviction, he and his business are being monitored by the federal government. Even though Respondent also continues to maintain an active real estate broker's license and an office at the location listed on his license, he does not engage in the real estate business and has no sales persons. The prosecuting Assistant United States Attorney in the federal criminal action supports and recommends leniency toward Respondent regarding the discipline of his license due to the considerable cooperation of Respondent with the criminal investigation. No prior disciplinary action has been taken against either Respondent's real estate broker's license or construction license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order: Suspending Respondent's real estate broker license for one year, with the suspension being stayed provided Respondent completes a two-year probation under terms and conditions that Petitioner deems appropriate. Imposing an administrative fine of $1,000. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of December 1993. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December 1993.
Findings Of Fact The Defendant was at all material times registered with tie Florida Real Estate Commission as a real estate salesman in the employ of Razook Real Estate, Inc. Razook Real Estates Inc. is a duly registered real estate broker. During 1973, the Defendant negotiated the sale of a business known as Carvel Ice Cream Supermarket number 1034, located in Riviera Beach, Florida, between Philip Caruso and Dorothea Caruso, as sellers, and Beverly Barratt, as purchaser. The Carusos and Ms. Barratt entered into a Purchase and Sale Agreement on May 14, 1973. (See: Defendant's Composite Exhibit 1). The agreement included assignment from the sellers to the purchaser of a lease covering the property on which the business was located. The lease assignment was incidental to the sale of the business, and was not a prime factor in the transaction. The Defendant negotiated the sale as a business broker employed by Rabern Business Associates, Inc., and not as a real estate salesman employed by Razook Real Estate, Inc. The Defendant was not registered with the Florida Real Estate Commission as a real estate salesman for Rabern Business Associates, Inc. When she signed the contract on May 14, 1973, Ms. Barratt delivered to the Defendant a $4,060 check made out to Rabern Business' Associates, Inc. which amount was to serve as a deposit. The contract provided that the sale would be subject to the approval of Carvel Corporation the franchisor of the business. On August 15, 1973, the transaction between the Carusos and Ms. Barratt was closed, except that the approval of Carvel Corporation had not yet been received. It was the clear understanding of the parties that the approval of Carvel Corporation was essential and that the closing was conditional upon that approval. The sellers were represented at the closing by Attorney Walter Colbath. Ms. Barratt was represented at the closing by Attorney Gustave Broberg. Shortly after the closing, Ms. Barratt went to New York to participate in a training program offered by Carvel Corporation for franchisees. Carvel Corporation would not approve the transaction unless the new franchisee completed this program. Upon her arrival in New York, Ms. Barratt was advised by representatives of Carvel Corporation that the Carusos owed Carvel Corporation more than $8,000, which amount was not reflected in the agreement between the Carusos and Ms. Barratt nor in the closing statement dated August 15, 1973. This is the first occasion upon which Ms. Barratt was apprised of this indebtedness on the part of the Carusos to Carvel Corporation. Carvel Corporation reluctantly permitted Ms. Barratt to participate in their training program with the hope that a resolution of the indebtedness could be made. Carvel Corporation would not approve the agreement between the Carusos and Ms. Barratt unless an arrangement was made respecting the indebtedness. When Ms. Barratt returned to Florida, negotiations respecting the $8,000 commenced, and although at one juncture the parties were close to an agreement, no final resolution was reached. The transaction was therefore not concluded. At no time did Carvel Corporation approve the sale as set out in the contract of May 14, 1973, or in the closing statement dated August 15, 1973. On October 23, 1973, Mr. Broberg, representing Ms. Barratt, wrote to Mr. Colbath, the attorney for the Carusos, stating that the transaction could not be consumated, and demanding that monies held by Attorney Colbath be returned to Ms. Barratt. He further stated in the letter: "It would be appreciated if you would forthwith inform Mr. Ralph J. DePaola of Rabern Business Associates, Inc. that the sale has terminated and request that he return the $4,000, which he is holding, to Mrs. Barratt." A copy of this letter was sent to Mr. DePaola. (See: Defendant's Composite Exhibit 1). On December 19, 1973, Mr. Colbath wrote to Mr. Broberg concerning monies that had been held by him, and with respect to the monies held by Mr. DePaola stated as follows: "The balance of $4,000 that was originally deposited with Mr. DePaola has, as you know, been retained by him as his commission. I am by copy of this letter informing Mr. DePaola what has transpired since we last talked and ask that you contact him directly." A copy of this letter was sent to Mr. DePaola. (See: Defendant's Composite Exhibit 1). No further demands were made by Ms. Barratt, or on her behalf, to the Defendant for the return of the $4,000. The Defendant did not have any agreement with Ms. Barratt that Ms. Barratt would be responsible to pay any commission to the Defendant. Four thousand dollars is listed on the August 15, 1973 closing statement as a sellers' expense. Mr. DePaola testified at the hearing that he considered the matter closed as of August 15, 1973; however, Mr. DePaola did know, or should have known, that approval by Carvel Corporation had not been obtained, and was necessary. Mr. DePaola has retained the $4,000, and it has not otherwise been returned to Ms. Barratt. The Defendant was not aware of the additional $8,000 obligation which the sellers owed Carvel Corporation on May 14, 1973, when the Purchase and Sale Agreement was signed, or on August 15, 1973, when the transaction was preliminarily closed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Count I of the Information against Ralph J. DePaola be dismissed. That Count II of the Information against Ralph J. DePaola be dismissed. That Count III of the Information against Ralph J. DePaola be dismissed. RECOMMENDED this 24th day of February, 1976 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner David F. Goodman was previously licensed as a real estate salesman in Florida from 1980 to 1986. On March 5, 1986, an Administrative Complaint was filed against him seeking disciplinary action on the grounds that he had been found guilty of a felony involving moral turpitude and had also failed to notify or inform the Florida Real Estate Commission of the guilty plea or of the conviction. In response to the Administrative Complaint, the petitioner voluntarily surrendered his license as a real estate salesman and entered a written agreement that his license would be revoked. In the "affidavit for the voluntary surrender of license for revocation," petitioner agreed that ". . . I will not apply for nor otherwise seek any real estate license or permit in the State of Florida for a period of not less than ten (10) years from the effective date of the revocation." By Final Order filed on May 29, 1986, the Florida Real Estate Commission revoked petitioner's license effective May 20, 1986. Petitioner filed his current application for licensure as a real estate salesman on or about September 17, 1987. In responding to question 6 of the application, which inquired if the applicant had ever been convicted of a crime, found guilty or entered a plea of guilty or nolo contendere, petitioner stated: "Arrested 10-12-84 Conspiracy to traffic cocaine-Sentenced Feb. 25, 1986 to 4 years Federal Court. Docket #84-205-CR-T-10. Sentence 2 yrs. suspended 5 yr. Probation (Case 84-09340-CF(ICT) VFCDAPCA-Voluntarly (sic) surrendered real estate license (Case No. 0151698) Dept. of Prof. Reg. -Final Order filed by FREC 5-29-86." Petitioner also disclosed that his former real estate license had been surrendered and revoked. The petitioner admits that he pleaded and was found guilty by the United States District Court for the Middle District of Florida of the felony offense of having knowingly and intentionally combined, conspired, confederated and agreed with various other persons to possess with intent to distribute a quantity of cocaine, a Schedule II, narcotic controlled substance. For this offense, petitioner was sentenced by the federal court to two years imprisonment, but the imposition of sentence was suspended and petitioner was placed on probation for a period of five years. The probationary period will terminate in April of 1990. The petitioner further testified that he was also found guilty and convicted in state court for the same crime. He was sentenced to four years in state prison, and served eighteen months of that sentence before being released. He has been out of the state prison for approximately nine months. Petitioner admits his guilt regarding the federal and state cocaine charges, states that he learned and was humbled by that experience and states that he now wishes to reenter the real estate profession which he loves in order to provide for his family. The petitioner did not present any other witnesses or documentary evidence.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application of David F. Goodman for licensure as a real estate salesman in Florida be DENIED. Respectfully submitted and entered this 23rd day of May, 1988, in Tallahassee, Florida. DIANE D. TREMOR 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 23rd day of May, 1988. COPIES FURNISHED: Douglas F. Goodman 1100 Boca Ciega Isle St. Petersburg Beach, Florida 33706 Manuel E. Oliver, Esquire Assistant Attorney General Suite 212 400 West Robinson Street Orlando, Florida 32801 Darlene F. Keller Acting Executive Director DPR, Division of Real Estate Post Office Box 1900 Orlando, Florida 32801
