Findings Of Fact Defendant, Ray Sans, is currently registered as a real estate broker in the State of Florida, holding Certificate No. 0077190. On April 2, 1973, Defendant submitted a Requests for Registration Certificate as a registered real estate salesman in the employ of Southeast Land Corporation. The Defendant's application was also signed by Darien Kendall, a registered real estate broker in the State of Florida, who also served as Vice President of Southeast Land Corporation. The application form recites that the applicant was to be "exclusively connected" with Southeast Land Corporation, which indicated its willingness to carefully supervise the applicant in his activities as a registered real estate salesman. On April 3, 1973, Defendant, Ray Sans, and Darien Kendall, as apprenticing broker, signed a Declaration of Employment for Apprenticeship Purposes, pursuant to Rule 21V-2.24, Florida Administrative Code, which was received by the Florida Real Estate Commission on April 9, 1973. On May 21, 1973, Defendant, Ray Sans, submitted a second Request for Registration Certificate as a registered real estate salesman in the employ of Store Realty Corporation. This request was also signed by Robert Pepper, President of Store Realty Corporation, and a registered Florida real estate broker. The application form indicates that Defendant, Ray Sans, was to be "exclusively connected" as a real estate salesman with Store Realty Corporation. On May 21, 1973, Defendant, Ray Sans, and Robert Pepper, as apprenticing broker, signed a Declaration of Employment for Apprenticeship Purposes, indicating that Defendant, Ray Sans, was to be employed as a real estate salesman with Store Realty Corporation, pursuant to the provisions of 21V-2.24, Florida Administrative Code. This declaration was received by the Florida Real Estate Commission on May 24, 1973. On July 27, 1973, a Notice of Termination of Salesman's Employment was signed by a representative of Store Realty Corporation, indicating that Defendant, Ray Sans, had resigned from the employ of Store Realty Corporation, indicating that Defendant, Ray Sans, had resigned from the employ of Store Realty Corporation, effective July 27, 1973, and that his services while in the employ of that company had been satisfactory. Defendant, Ray Sans, returned to the employ of Southeast Land Corporation in September of 1973, and remained in the employ of that company as a real estate salesman until February, 1975. Defendant testified that he completed a Declaration of Employment for Apprenticeship Purposes after his return to Southeast Land Corporation in September of 1973, but that he did not know whether his employer, or his supervising broker, Sam Stier, ever mailed the declaration to the Commission for filing. Thereafter, Defendant filed an application for registration as a real estate broker with the Commission on January 16, 1975, and, after passing the required examination, received his license as a registered real estate broker on March 17, 1975. The application submitted by Defendant to the Commission contained the following question in Paragraph 16(a): "Have you served an apprenticeship as a real estate salesman with a registered real estate broker in the state of Florida for the 12 consecutive months within 5 years next prior to the date of this application?" Defendant answered this question in the affirmative, and in addition, gave the name and address of Darien Kendall, a registered real estate broker in the State of Florida, and Vice President of Southeast Land Corporation, as the broker with whom he had served his apprenticeship. There is nothing in the record to indicate that the Commission ever contacted Ms. Kendall to verify whether Defendant had, in fact, served such apprenticeship. Shortly after receiving his real estate broker's license on March 17, 1975, Defendant left the employ of Southeast Land Corporation. Both Southeast Land Corporation and Store Realty Corporation have since gone out of business.
Findings Of Fact The Petitioner Department of Professional Regulation, Division of Real Estate (hereafter Department), is a state governmental licensing and regulatory agency charged with the responsibility to prosecute complaints concerning violations of the real estate licensure laws of the State of Florida. The Respondent Melvin M. Lewis is now and was at all material times a licensed real estate broker in Florida holding license number 0052222. The Respondent Melvin M. Lewis' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Faye F. Lewis is now and was at all material times a licensed real estate salesman in Florida holding license number 0052101. The Respondent F. Lewis' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Larry B. Lewis is now and was at all material times a licensed real estate salesman in Florida holding license number 0052189. The Respondent L. Lewis' last known address is Melvin M. Lewis, Registered Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Cindy L. Morales is now and was at all material times a licensed real estate salesman in Florida holding license number 0123347. The Respondent Morales' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Melvin M. Lewis Licensed Real Estate Broker, Inc., is now and was at all material times a corporation registered as a real estate broker in Florida holding license number 0243694. The Respondent corporation last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. At all material times, the Respondent M. Lewis was licensed and operating as a qualifying broker and officer for the corporate broker, Melvin M. Lewis Licensed Real Estate Broker, Inc. The Respondents M. Lewis, F. Lewis, L. Lewis and Morales, from May 4, 1977 to September 9, 1979, as sellers individually and/or in concert as owners, officers and directors of various corporations, including South Florida Property, Inc., and West Dade Acres, Inc., solicited and obtained through telephone and mail, 58 purchasers who entered into agreements for deed for one and one-fourth acre lots located within a sixty-acre parcel of land in Section 21, Range 37, Township 54, Dade County, Florida. On September 24, 1979, the Respondent Melvin M. Lewis, acting on behalf of South Florida Properties, Inc., a Florida corporation, entered into a deposit receipt contract, as purchasers with InterAmerican Services, Inc., by Lester Gottlieb, as sellers, for the purchase of 60 acres, more or less, more particularly described as: The N.W. 1/4 of the N.W. 1/4 of the N. 1/2 of the S.W. 1/4 of the N.W. 1/4 Section 21, Township 54, Range 37E, Dade County, Florida. The total purchase price of the parcel of land was $120,000.00. The purchase price was to be paid by a down payment of $1,520.00 and a first priority purchase money mortgage and note of $118,479.80. From May 4, 1977, to September 24, 1979, the Respondents had no ownership interest in the above described 60- acre parcel of land. The purchase and sale closed on April 22, 1982, as evidenced by a warranty deed wherein title to the 60-acre parcel more particularly described as: The N.W. 1/4 of the N.W. 1/4 of the N. 1/2 of the S.W. 1/4 of the N.W. 1/4 Section 21, Township 54, S., Range 37 E. lying and being in Dade County, Florida. was transferred to South Florida Properties, Inc., by Lester Gottlieb, President. The subject land lies in the East Everglades moratorium area and is subject to Dade County Ordinance 81-121 which is highly restrictive to owners of parcels or lots of land less than 40 acres. It is approximately ten miles west of Krome Avenue and is underwater on the average of nine months a year. As a result of its isolated location, it is accessible only by airboat. A building moratorium was enacted for the subject land in September, 1981, and is still in effect with no significant change planned for the reasonably foreseeable future. Upon discovering the increased restrictions on the 60-acre parcel, the Respondents demanded of InterAmerican Services, Inc., a refund of their purchase price. As a result, Respondents delivered a Quit Claim Deed dated October, 1982, from South Florida Properties, Inc., executed by Melvin Lewis, President. InterAmerican Services, Inc., delivered a satisfaction of mortgage to South Florida Properties, Inc. on December 7, 1982, which was executed by Lester Gottlieb, President. Although Respondents had on December 7, 1982, no ownership interest in the real property described in Paragraph 12 supra, they continued to collect payments from purchasers of the 1 1/4 acre lots. Respondents attempted to, and were successful in, having some of the purchasers of the 1 1/4 acre lots in the area described in Paragraph 12, supra, agree to exchange their "lots" for lots in a parcel of land more particularly described as portions of Sections 32, 33, 34, of range 37, township 55, Dade County, Florida, that was owned by Respondent Cindy Morales' company, West Dade Acres, Inc. These lots which were sold for approximately $7,500 each, were accessible only by airboat, were near the Everglades National Park and were incapable of being actually surveyed because of their isolated location. Several purchasers, in particular, Chester Herringshaw and Edward Gruber, refused to exchange their original "lots" and continued making payments to South Florida Properties, Inc. Respondent Cindy Morales deposited into the bank account of West Dade Acres, Inc., one or more of the payments made by Chester Herringshaw and/or Edward Gruber without authority or consent by them to do so. Respondents Cindy Morales and Melvin M. Lewis have failed to refund to Edward Gruber the money he paid for the purchase of real property and have failed to provide Edward Gruber clear title to the real property sold to him. To induce purchasers to enter into one or more of the 58 agreements for deed, the Respondents orally represented the 1 1/4 acre lots as valuable property, that the value would greatly increase in the near future, that the property was suited for residential and other purposes and that the purchase of the property was a good investment. The subdivisions established by the Respondents through corporations they controlled existed only on paper and were formed as part of a telephone sales operation to sell essentially worthless land to unsophisticated out-of- state buyers who believed they were purchasing potentially valuable land for investment and/or retirement purposes. The various corporations which were formed and dissolved by the Respondents, including South Florida Properties, Inc., and West Dade Acres, Inc., were attempts by the Respondents to shield themselves from liability for their fraudulent land sales activities. The Respondents collected the initial deposits and monthly payments in accordance with the agreements for deed, but the Respondents failed and refused to deliver warranty deeds as promised upon the full payment of the purchase price. The Respondents attempted to obtain the exchange of property agreements without fully and truthfully advising the agreement for deed purchasers of the quality of any of the property they were buying or exchanging. The Respondents allowed South Florida Properties, Inc., to become defunct without furnishing good and marketable warranty deeds as promised, and without returning the money received, or otherwise accounting for the money received to the various and numerous agreement for deed purchasers, notwithstanding the purchasers' demands made upon Respondents for accounting and delivery of the money paid. At the request of Respondent Larry Lewis, Randy Landes agreed to sign a document as President of Miami Kendall Estates, Inc. From that point on, Randy Landes did nothing else with or for the company and had no idea of what business Miami Kendall Estates, Inc., transacted. On November 15, 1982, Miami Kendall Estates, Inc., issued a warranty deed to Vernon Mead granting a parcel of real property to the grantee. Persons unknown executed the warranty deed by forging Randy Landes' name which forgery was witnessed by Respondents Faye Lewis and Cindy Morales and acknowledged by Respondent Melvin Lewis as a notary public. On September 24, 1982, the Respondent Larry B. Lewis unlawfully and feloniously committed an aggravated battery upon Carlos O'Toole by touching or striking Carlos O'Toole against his will by shooting him with a deadly weapon, to wit, a revolver, in violation of Subsection 784.045(1)(b), Florida Statutes. On December 8, 1982, Respondent Larry B. Lewis was convicted of a felony and adjudication was withheld. He was on probation for a period of ten years beginning December 8, 1982, by the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Florida. Respondent Larry B. Lewis failed to inform the Florida Real Estate Commission in writing within thirty days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the real estate license of all Respondents be revoked. DONE and ENTERED this 11th day of September, 1987 in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1987. APPENDIX Case No. 86-3941 Petitioner's Proposed Recommended Order Paragraphs 1-29, 31 - accepted as modified. Paragraph 30 - rejected; it was not established what felony the Respondent Lewis was convicted of. Respondent's Proposed Recommended Order Paragraph 8 - Rejected. The evidence established that the corporations which the Respondents established and controlled sold the various properties. Paragraphs 9-13 - Accepted. Paragraph 14 - Accepted. Although sales were made prior to 1981, the land in question was essentially worthless when purchased. Paragraph 15 - Rejected. The moratoriums, vested rights provision offers virtually no protection to owners of the property. Paragraphs 16-17 - Rejected. The Respondents merely traded one set of undevelopable property for another. Paragraphs 18-19 - Rejected. Irrelevant. Paragraphs 20-21 - Rejected. Neither Mr. Herringshaw nor Mr. Gruber agreed to exchange their property. Paragraph 22 - Rejected. Contrary to the weight of the evidence. Paragraph 23 - Rejected. Contrary to the weight of the evidence. Paragraph 24 - Accepted. Paragraph 25 - Rejected. The corporations were formed by the Respondents to receive monies for these fraudulent land schemes. Paragraph 26 - Rejected. Contrary to the weight of the evidence. Paragraph 27 - Rejected. See No. 25. Paragraphs 28-30 - Rejected. Contrary to the weight of the evidence. Paragraphs 31-38 - Rejected. Contrary to the weight of the evidence. Paragraphs 39-42 - Accepted. Paragraphs 43-46 - Rejected. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Tallahassee, Florida 32802 Herman T. Isis, Esquire ISIS & AHRENS, P.A. Post Office Box 144567 Coral Gables, Florida 33114-4567 Tom Gallagher, Secretary Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
The Issue The issue in this case involves the administrative charge which has been placed by the Florida Real Estate Commission in the person of Harold T. Mooney, against one Claude Talmadge Bray who is registered with the Florida Real Estate Commission as a real estate broker. The charging document which is drawn in the form of an information, says in pertinent part: COUNT ONE "(1) That the defendant did, on or about May 21, 1974, file his sworn application for registration as a real estate broker with the Florida Real Estate Commission on a form provided by said Commission. Question 16(a) of the application read as follows: 16(a) Have you served an apprenticeship as a real estate salesman with a registered real estate broker in the State of Florida for the 12 consecutive months within 5 years next prior to the date of this application? If yes, who was the registered broker and what is his business adress? The defendant answered "yes" to the first part of the above question and "Tony Vaughan - Monteverde, Florida" to the second part of such question on his said application for registration. That thereafter the application of defendant, Claude Talmadge Bray, was approved and he subsequently received his registration as a real estate broker, being initially registered as1 such with the Commission on or about September 18, 1974. That, at the time of the execution of the application as aforesaid, the defendant knew or should have known that his answers to question numbered 16(a) thereof were false and untrue in that: From September 10, 1971, to June 30, 1974, inclusive, defendant Claude Talmadge Bray was a full-time employee of Hallmark Leisure Homes, Inc., a construction company with offices at 3744 North 40th Street, Tampa, Florida 33610. While the defendant did register with the Commission as a real estate salesman employed by Lester Tony Vaughan, a registered real estate broker whose last business address is registered with the Commission as Division Street, Monteverde, Florida, 32756, said registration was effected solely for the purpose of attempting to show to the Commission that the defendant wads in compliance with the apprenticeship requirements of Subsection 475.17(3), Florida Statutes; but that, in truth and fact, the defendant Claude Talmadge Bray had served no apprenticeship as required by, and within the intent and meaning of said Subsection 475.17(3), Florida Statutes, with the said Lester Tony Vaughan or any other registered real estate broker, and that the defendant, during said period of purported apprenticeship, had not handled any real estate transactions participated in any closings or received any instructions from, for or on behalf of the said Lester Tony Vaughan, Registered Broker. That by reason therof, it appears that the defendant1 Claude Talmadge Bray, does not possess the necessary qualifications of honesty, truthfulness, trust worthiness and good character as required by Subsection 475.17(1), Florida Statutes; has been guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing and trick, scheme or device, in violation of Subsection 475.25(1)(a), Florida Statutes; and that the defendant obtained his registration as a real estate broker with the Florida Real Estate Commission by means of fraud, misrepresentation, or concealment, in violation Of Subsection 475.25(2), Florida Statutes. WHEREFORE, plaintiff prays that this Information be filed and notice of the filing thereof be given to the Defendant and that proceedings be had, all in accordance with the provisions of Chapter 475, Florida Statutes, and if the evidence warrants, the registration of Claude Talmadge Bray be revoked." The Respondent has denied the allegations set forth in the charging document, which is entitled an information, and proceeded to a hearing before the Division of Administrative Hearings in the person of the undersigned, under authority of Chapter 120, Florida Statutes.
Findings Of Fact The Petitioner presented its case on the basis of oral testimony presented at the hearing and through tangible items of evidence. The Respondent elected to present evidence in the course of the hearing, and did so through the medium of oral testimony in the course of the hearing and through tangible evidence, which was the subject of a stipulation with the Petitioner. The first witness presented by the Petitioner was Ralph J. Ramer, President of Hallmark Leisure Homes, Inc. Mr. Ramer was the former employer of the Respondent, and additionally was responsible for making a complaint which led to the investigation of this case by the Petitioner. This complaint was in the form of a letter from the witness, Ramer, addressed to the Petitioner and dated July 3, 1974. A copy of this letter has been received by the hearing officer as a Joint Exhibit of the Petitioner and Respondent and Is therefore made a part of the record in this cause. Mr. Ramer indicated that he had hired the Respondent on September 10, 1971, as a salesman with the witness's then existing company, and that the Respondent had been promoted to a vice president's position in 1971 or 1972 after the incorporation of the witness's company. It was further related that the Respondent was terminated from employment by the witness on June 30, 1974. During the course of the Respondent's employment with Hallmark Leisure Homes, Mr. Bray participated in a position which had as its major function the sale of construction contracts for the purpose of building homes on real estate which was held by the purchaser. In addition, when the Respondent became Vice President he made certain connections with the bank, in that he talked with the officers of the banks relative to financing. More specifically, Bray presented sales papers to banks, he followed up on proposed financing, he attended closings of loans if necessary, he took credit statements for potential purchasers, ordered surveys, ordered titles, ordered insurance, prepared deeds, prepared mortgage documents, worked with appraisers, conducted closings and he picked up certain bank draw disbursements from the lending institutions. At these closings, as aforementioned, mortgages were signed and funds were disbursed. In relation to the question of whether or not Mr. Ramer's company and, more particularly, Mr. Bray, were involved in the active sale of real estate, he said that salesman could assist a potential customer in finding land to build houses on. Ramer also indicated that the company, Hallmark Leisure Homes, Inc., had bought four lots in Ocala and had built three houses on these lots. The cause for dismissal of the Respondent, according to Mr. Ramer, was for the reasons set forth in the letter of July 3, 1974, by the witness. Ramer further elaborated that he didn't know that Lester L. Vaughan had made application for professional license to the Florida Construction Licensing Board, while Vaughan was working for Ramer. Therefore, when he found out that Bray was working full-time for the witness and at the same time helping other employees to obtain a contractor's license, which was felt to not be in the best interest of the company because it would promote competition against the company through the employee of the company, Ramer dismissed the Respondent. In response to questions concerning the existence of a certain civil suit filed by the Respondent against Mr. Ramer, the witness acknowledged such a suit, but stated that he had no sense of vendetta against the Respondent. While the Respondent was employed with Hallmark Leisure Homes, the Respondent was preparing for a real estate license exam and serving an apprenticeship according to Lester Vaughan, the younger At the same time there were negotiations with the officials at Hallmark Leisure Homes, in particular, Mr. Ramer, for the purpose of qualifying the real estate broker's license of Lester T. Vaughan in establishing a branch office at the Hallmark Leisure Homes office location on North 40th Street, Tampa, Florida. Moreover, Mr. Ramer was in favor of this arrangement and it didn't appear that these negotiations to establish such an office were in any way designed to defraud the public from Vaughan the younger's observation. When the witness, Lester Vaughan, was specifically asked questions about the nature of the sales in which the Respondent participated, he stated that the sales were not the sale of real estate per se. However, he did indicate that there was a similarity in his mind to the sale of real estate and the sale of "on your lot construction contracts", and he stated this opinion from his knowledge of the function of a real estate broker, being a real estate broker himself. As a matter of fact, the witness felt that the function performed by the Respondent, Bray, was much more detailed than the function of a real estate broker in carrying out the broker's duties. Another significant comment by the witness was his statement that the contract form used by Hallmark Leisure Homes was similar to the form utilized for real estate contracts, testifying from his knowledge. In closing, the witness testified that he and the Respondent had looked for lots to be purchased to build homes on for prospective customers, but that they were never successful in achieving such an arrangement. The Petitioner placed Lester T. Vaughan on the stand, who at the time of his testimony was also charged by the Florida Real Estate Commission in Progress Docket #2671 for Hillsborough County, with an offense relating to the apprenticeship of Claude Talmadge Bray. The witness, Lester T. Vaughan, indicated that he was not working at the time of his testimony, but he had been and office worker for a citrus company. He has been a licensed real estate broker since August of 1972; however, he has never transacted any real estate sales. The witness was shown Petitioner's Exhibits "B", "C", "D", and "E" and identified those documents. Exhibit "B" is a reference statement signed by the witness upon the request for application to be a real estate broker made by Claude Talmadge Bray before the Florida Real Estate Commission. Exhibit "C" by the Petitioner is an application for a branch office registration certificate. Petitioner's Exhibit "D" is a declaration of employment for apprenticeship purposes and Petitioner's Exhibit "E" is a statement of the. applicant's employment and apprenticeship by the witness, Lester Tony Vaughan. (All these documents are copies of the originals). Lester T. Vaughan indicated that the Respondent, Bray, had not made any real estate sales while in his employ and that the figures in the affidavit which is Petitioner's Exhibit "E", were transactions mad Respondent was working with Hallmark Leisure Homes. The witness then testified that the Respondent told him that these were sales while in the employ of Hallmark Leisure Homes and further that he, the Respondent, could use those sales as a basis for stating experience in applying for a Real Estate Broker's License, even though they were not sales of real estate. Lester T. Vaughan testified that he had not talked with Mr. Ramer about locating a branch office on North 40th Street, Tampa, Florida, at the business of Hallmark Leisure Homes, but to his knowledge Mr. Ramer had never voiced any objection to such a branch office at that location. Lester T. Vaughan stated that he had never examined the contract forms or the closing statements utilized by Hallmark Leisure Homes. He had however talked with the Respondent 4 or 5 times in Tampa and several times at his, the witness's home address, about real estate related matters. At the close of the Petitioner's case, the Petitioner offered into evidence Exhibits "A" - "E", all of which have been particularly described, in the course of the findings of fact, with the exception of Exhibit "A" for identification, which is the application for registration as a real estate broker which was filed with the Florida Real Estate Commission by the Respondent, Claude Talmadge Bray. These items of evidence were admitted as evidence after examination and legal argument as will be further described in the section of this Recommended Order entitled CONCLUSIONS OF LAW. The Respondent made certain motions at the Inception of the case directed to the sufficiency of the charging document and renewed these motions at the close of the Petitioner's case. These representations by the Respondent will be considered in the section entitled CONCLUSIONS OF LAW. The Respondent offered witnesses in support of his position in the form of a witness to the facts contained in the allegations placed against the Respondent and certain character witnesses in his behalf. The Respondent further elected to take the stand in his own behalf. (All matters offered by the Respondent were premised on the eventuality that the Hearing Officer and/or the Florida Real Estate Commission did not agree with the Respondent's contention that the Petitioner had failed to meet its burden of proof, either in the statement of its pleadings or through presentation of its case in chief). The presentation of testimony on the facts related in this matter was a brief recall of Lester T. Vaughn for purposes of testifying about the facts surrounding the apprenticeship. In this recall Lester T. Vaughan indicated that he felt that the Respondent was a smart young man, by way of responding to a question on the necessity for close supervision of the work by the Respondent. As a follow up he indicated that the broker apprentice did not need day to day supervision. Finally, the witness stated that he felt that bray would have called him if he had needed help from the witness. When the Respondent took the stand, he testified that he is now employed with Ruby V. Williamson, a real estate broker, and that he has been so employed for 6 months as a realtor associate. A brief statement of his background prior to his present employment indicated that he had received formal education to include a bachelors degree and some graduate work, although It was not clear from the testimony that he received a graduate degree. Additionally, it was net established if the formal education had any significance in real estate work. Some of the positions held by the Respondent included work in educational television, teaching, sales positions, and eventually work with Jim Walter Corporation in home sales. While with Jim Walter he served as a branch manager of the offices in Lake City, Florida, Orlando, Florida, and Fredricksburg, Virginia, in the home construction division of that corporation. After leaving Walter Corporation he worked briefly at Allstate Homes and then started with Hallmark Leisure Homes in 1971. At the beginning of his employment with Hallmark Leisure Homes they were a partnership and later became a corporation. The Respondent stated that he started as a salesman with Hallmark Leisure Homes and was elevated to the position of vice president in that corporation at a later date. In his employment with Hallmark Leisure Homes he said that the officials at Hallmark Leisure Homes thought that real estate expertise was an advantage aid, moreover, that to locate a real estate branch office at their business address on North 40th Street, Tampa, Florida would be advantageous. His involvement with real estate licensing started with the issuance of a real estate salesman's license from the Florida Regal Estate Commission in 1971. After that time he decided to qualify for a real estate broker's license before the Florida State Real Estate Commission, and selected Lester T. Vaughan as his apprenticing broker on the basis of a suggestion made by Lester Vaughan, his coworker. For the record, Lester Vaughan is the son of Lester T. Vaughan. Hue indicated that he spoke to other realtors about the apprenticeship, in addition to conversations with Lester T. Vaughan. Two of these persons, Pearl Elliston and Clay Cordington were asked about their interpretation of the form which is Petitioner's Exhibit "E", relating to the numbers of real estate sales and attendance at closings of real estate sales. The Respondent stated that Mr. Cordington felt that the Respondent's experience with selling "on your own lot homes" was sufficient experience to be counted in responding to the form which is Petitioner's Exhibit "E". The witness felt that the reason for this response was because of the familiarity of Mr. Cordington with the work the Respondent was doing, in that the Respondent had sold Mr. Cordington two houses. The Respondent stated that Mrs. Elliston did not give him a definite answer on his inquiry. Furthermore the witness Indicated that he called the Florida Real Estate Commission office, particularly the licensing department, about what the blanks meant on the form which is Petitioner's Exhibit "E" and the blanks Involved with numbers of real estate sales, closings attended, and hours of instruction, and ethics and office operations etc. The witness stated that he spoke with some lady in the department that didn't seem to know what to do about that particular form. Upon the undersigned's examination of the witness on the question of whether or not he referred this matter to the superior of the lady who answered his inquiry, the witness responded that he did not. By way of elaboration on the forms, the Respondent testified that he looked at the Land Book in order to comply with the matters set forth in the forms. The witness seemed to place emphasis on the fact that when he was provided with Petitioner's Exhibit "D", he was told that this was the only necessary form to be completed as part of the requirement for becoming a licensed real estate broker in the State of Florida, for that reason he seemed somewhat baffled by the form which is Petitioner's Exhibit "E". The witness went into some detail to explain how he arrived at the figures on the form which is Petitioner's Exhibit "E". Put concisely, the witness testified that the basis for the figures 56 and 24 upon Petitioner's Exhibit "E" were arrived at by examining "on your lot home sales" made while employed by Hallmark Leisure Homes and closings that he attended in connection with those sales. The figure 100 hours was arrived at by estimates in discussions with Lester T. Vaughan and lecture type course attendance. Bray stated that the figures on that form, Petitioner's Exhibit "E", had been discussed with Lester T. Vaughan, Ramer and Weisiger, another official at Hallmark Leisure Homes. There are other matters which constituted Involvement with real estate sales, but none of these listings were ever consummated through a real estate sale. Moreover, these figures involving listings for Hallmark Leisure Homes and Listings by the Respondent privately were not reflected in figures on Petitioner's Exhibit "E". The Respondent seemed to, under questioning of whether the sales reflected in Petitioner's Exhibit "E" were real estate sales, be convinced at the time of hearing that the sales were not real estate sales per se, although at the time he was making the representations on Petitioner's Exhibit "E" he did not seem as convinced of that fact. Nevertheless, because of the real estate related nature of the work done for Hallmark Leisure Homes, and because in many respects the witness felt that his function was more comprehensive than that of a real estate broker, he felt that the experience with Hallmark Leisure Homes was work which was a fulfillment of the requirement for apprenticeship. Finally, the witness indicated that at the time he filled out the various forms for the Real Estate Commission that he had no intent to defraud or mislead by offering the statistics that he had set forth. Testimony was offered by one Clifford Opp, Jr., Esquire, who has known the Respondent since he was 14 years old, to the extent of being in business with the Respondent, in a restaurant venture which was unsuccessful. He further stated that he, did not feel that the Respondent would provide false information to the Real Estate Commission. Although the witness had been in a confidential relationship with Hallmark Leisure Homes, as their attorney, and therefore unable to divulge any confidences; nevertheless, stated that he didn't recall any report of the company about the Respondent's conduct. In summary, the witness felt that the Respondent was trustworthy. Wilbur J. Wells was called on behalf of the Respondent. Mr. Wells had been a coworker at Hallmark Leisure Homes, in addition to being in the same fraternity in college with the Respondent and in the restaurant business with the Respondent. Mr. Wells is now a realtor associate and has a real estate salesman's license issued by the Florida Real Estate Commission. He says that the Respondent's character in terms of truth and veracity is outstanding and that the witness did not believe that the Respondent would lie to the Real Estate Commission. Ruby Williamson, the present employer of the Respondent was called. Ruby Williamson is a real estate broker, and she has known the Respondent for 6 or 7 years, and feels that the Respondent has an excellant reputation and would not lie to the Real Estate Commission. Assuming the application of the cited statutes in the complaint, from the testimony set forth in the hearing it would appear that the Respondent did not intend to defraud, misrepresent, conceal, act under false pretenses, deal dishonestly or trick, unlawfully scheme or device, in violation of Section 425.25(1)(a), Florida Statutes, nor did the applicant intend to defraud, misrepresent, or conceal in violation of ss.425.25(2), Florida Statutes. Moreover, there has been insufficient showing that the Respondent lacks the necessary qualifications of honesty, truthfulness, trustworthiness and good character as required by ss.425.17, Florida Statutes. The facts show that the Respondent sought advise from practicing real estate brokers in Florida and the Florida Real Estate Commission before filling out Petitioner's Exhibit "E", and these facts are unrefuted. He acted upon that information about the exhibit in good faith. Considering the testimony of the relationship of the Respondent to Lester Tony Vaughan, his apprenticing broker, the Respondent was legitimately receiving counsel and acting in the employ of Lester Tony Vaughan, notwithstanding, the fact that the pursuit failed to consummate any real estate sales. The facts also Indicate that the Respondent received adequate supervision from Lester Tony Vaughan, because Florida Statutes, Chapter 475 and its rules and regulations do not require full time supervision or employment in qualifying for a real estate broker's license in Florida. The six or seven visits and conferences between Lester Tony Vaughan and the Respondent were sufficient compliance for a man in the Respondent's position considering the relationship of the sales activity he was performing for Hallmark Leisure Homes to the sale of real estate proper. Finally, certain evidential items were offered in behalf of the Respondent. The first item was the letter dated January 3, 1974, written by R. J. Ramer, President of Hallmark Leisure Homes, Inc., addressed to the Florida Real Estate Commission. This letter has been received as a Joint Exhibit of the parties upon joint stipulation of the parties and has been marked as Joint Exhibit "1". A second document was offered by the Respondent in the form of a letter addressed to the Florida Construction Industry Licensing Beard on the subject of Lester Vaughn's application for license. This letter was written by R. J. Ramer, President, Hallmark Leisure Homes, Inc. This particular correspondence was not admitted far reasons set forth in the section entitled CONCLUSIONS OF LAW.
Recommendation Based upon the foregoing, it is recommended that the Respondent, Claude Talmadge Bray, be released from the charges brought under Progress Docket #2658, Hillsborough County, and that the Respondent go forth without penalty against his registration as a real estate broker in the State of Florida and that his certificate as broker-salesman remain in full force and effect. DONE and ENTERED this 2nd day of January, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: S. Ralph Fetner, Jr., Esquire (For the Commission) Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 David Luther Woodward, Esquire Rose and Woodward, Chartered 1211 The Madison Building Tampa, Florida 33602
The Issue Whether or not the Petitioner, Barbara A. Story, is eligible to sit for the Florida Real Estate Commission's licensure examination.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, post-hearing memoranda and exhibits, and the entire record compiled herein, the following relevant facts are found. On or about July 26, 1981, Petitioner, Barbara A. Story, filed an application for licensure as a real estate salesperson with the Respondent, Department of Professional Regulation, Board of Real Estate. By letter dated September 28, 1981, Randy Schwartz, Respondent's counsel, advised Petitioner that the Respondent, at its duly noticed meeting of September 23, 1981, denied Petitioner's application for licensure. That letter recited that the specific reason for the Respondent's actions was baked on Petitioner's answer to question six (6) on the licensing application and her criminal record. In this regard, evidence reveals and Petitioner's application reflects that Petitioner was convicted in the Southern District of Florida (West Palm Beach), on September 8, 1978, of embezzlement of monies from a bank, in violation of Title XVIII, United States Code, 656. Petitioner was sentenced by the Honorable C. Clyde Atkins on that date, pursuant to the split-sentence provision of Title XVIII, United States Code, 3651, in that she was to be confined in a jail-type institution for a period of one (1) month, and thereafter, the remainder of the sentence of confinement [one (1) year] was suspended. Upon discharge from incarceration, Petitioner was to be placed on probation for a period of five (5) years under the special condition that she make restitution for the monies embezzled. Jurisdiction of that case was transferred to the Middle District of Florida, and on March 29, 1982, Petitioner was terminated from probation supervision. Robert E. Lee, a chief U.S. probation officer, who supervised petitioner while she was under the supervision of the subject office as a probationer, indicates that Petitioner reflected a favorable attitude toward her probation officer, remained gainfully employed and abided by all the rules of probation. Petitioner has never been arrested since her conviction in 1978, and has received only one (1) traffic citation during December of 1981. Petitioner has been continuously employed since her conviction and is presently a secretary/receptionist where she is in charge of and controls office business for Mobile Craft Wood Products in Ocala, Florida. Petitioner has been in charge of processing cash sales for the past four (4) years. Petitioner is presently making restitution to the savings and loan association that she embezzled. Charles Demenzes, a realtor/broker who owns Demenzes Realty Inc., has known Petitioner approximately one (1) year. Mr. Demenzes spoke highly of Petitioner and was favorably impressed with her desire to become licensed as a real estate salesperson. Mr. Demenzes is hopeful that Petitioner will be afforded an opportunity to sit for the licensure examination such that she can join his sales force, if she successfully passes the examination. Respondent takes the position that Petitioner, having been convicted of the crime of embezzlement, which involves moral turpitude and therefore is ineligible to sit for the Respondent's licensure examination. In this regard, counsel for Respondent admits that the Board, when acting upon Petitioner's application for licensure, did not consider the fact that Petitioner has been released from probation supervision inasmuch as that factor did not exist at the time Petitioner made application for licensure. Character letters offered by Petitioner were highly complimentary of Petitioner's reputation and abilities as an employee. (Petitioner's Composite Exhibit No. 1.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is hereby RECOMMENDED: That the Respondent enter a final order granting Petitioner's application for licensure as a real estate salesperson. DONE and ENTERED this 13th day of October, 1982, 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 13th day of October, 1982.
Findings Of Fact The Respondent, Gary R. Berkson, is a licensed real estate salesman, holding license No. 034697. From September 27, 1980, until May of 1983, the Respondent as a salesman working as an independent contractor for Act Now Real Estate, Inc., a corporate broker whose active qualifying brokers and officers were Robert F. Picheny and Thelma R. Sarkas. Robert F. Picheny was subpoenaed and requested to bring with him the records of Act Now Real Estate, Inc., showing the disbursement of commissions to the Respondent. These records did not contain any entries relating to rental transactions involving the persons named in the complaint as having paid commissions to the Respondent. The only lease offered and received in evidence was between Samuel Schnur, as lessor, and lessees named Davis and Johnston. Samuel Schnur, presented as one of the Petitioner's witnesses, did not pay a rental commission to the Respondent in connection with this lease. Another lease transaction where the Respondent was alleged to have received rental commissions was between Sami Elmasri, as landlord, and Donald Bauerle, as tenant. Sami Elmasri, presented as another of the Petitioner's witnesses, testified that he paid a $300 commission, but that this was not paid to the Respondent. This commission was paid to another salesman, Wendy Corman. The final witness for the Petitioner, except for the Respondent, was Wendy Corman. She showed Mr. Elmasri's property to persons wishing to rent through a lead given by the Respondent. She was paid a $300 commission by Mr. Elmasri. The Respondent did not receive any of this commission. The Petitioner's final witness was the Respondent, who testified that he never received a commission for rental property. The only money he received in connection with rental properties was a management fee he received on some properties owned by Richard Jacobson. This fee was in payment for management services consisting of arranging for repairs to the properties such as painting it, repairs to the plumbing and the garage door, and being available to tenants with problems in the absence of the owner. These management fees continued even after the Respondent left Act Now Real Estate, Inc., until Mr. Jacobson assumed the management duties himself.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed against the Respondent, Gary R. Berkson, be DISMISSED. This Recommended Order entered this 13th day of June, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1984.
The Issue The issue in Count I is whether Section 475.42(1)(j) absolutely prohibits a broker or salesman from filing a lien or other encumberance against real property to collect a commission. The issue in Count II is whether the Respondents violated a lawful order of the Commission by failing to remove the motion of lis pendens contrary to Section 475.25(1)(e), Florida Statutes.
Conclusions Section 475.42(1)(j), Florida Statutes, provides as follows: "No real estate broker or salesman shall place, or cause to be placed, upon the public records of any county, any contract, assignment, deed, will, mortgage, lien, affidavit, or other writing which purports to affect the title of, or encumber, any real property, if the same is known to him to be false, void, or not authorized to be placed of record, or not executed in the form entitling it to be recorded, or the execution of recording thereof has not been duly authorized by the owner of the property, maliciously or for the purpose of collecting a commission, or to coerce the payment of money to the broker or salesman or other person, or for any unlawful purpose." Clearly the Respondents placed or caused to be placed the notice of lis pendens in question. A notice of lis pendens is clearly an "other writing which purports to effect the title of, or encumber, any real property." The Florida Real Estate Commission argues that this provision is an absolute bar to the filing of any lien for the purpose of collecting a commission. The Respondents argue that this provision is not an absolute bar and there are circumstances when a broker may file a notice of lis pendens. They also assert that the notice of lis pendens falls within the exception because the Circuit Court refused to remove the notice of lis pendens upon motion of the property owner. Lastly, it is argued that the notice was filed by counsel for the Respondents in good faith on an action at law and that this mitigates their action even if there was a violation. The language of Section 475.42(1)(j) cannot be read to absolutely prohibit a broker from obtaining a lis pendens. When given this construction, it effectively denies brokers and salesmen access to the courts for redress of injury as provided in Article I, Section 21 of the Florida Constitution. Section 475.42(1)(j) is a complex provision which is subject to two interpretations. One interpretation would prohibit a broker or salesman from filing an encumberance if the same were known to him to be false, void or not authorized by law; if not authorized to be upon the public records; if not executed in the form entitling it to be recorded; if the execution of recording thereof has not been duly authorized by the owner of the property; if maliciously (filed); if for the purpose of collecting a commission, if to coerce payment of money to the broker or salesman or other person; or if for any other unlawful purpose. This first interpretation would consider each clause a separate limitation on filing an encumberance. The facts analyzed under this interpretation do not show any knowledge by Respondents that the lis pendens was false, void or not authorized to be filed or not on a form entitling it to be recorded. The facts do not show that Respondents filed the lis pendens maliciously, for the purpose of collecting a commission, or for the purpose of coercing payment of money to the broker or salesman, or for any unlawful purpose. The nature of lis pendens would not require the owner's authorization of execution for recording. The facts show that the lis pendens was filed by Respondent's attorney in conjunction with a suit brought by the Respondents against Perrin. The record also shows that the circuit court determined that the lis pendens was recordable when it denied the motion to remove it. The notice of lis pendens was neither malicious, coercive or for the purpose of collecting the commission. The notice was for the purpose of perfecting the claim against the property for execution of the judgment if the Respondents prevailed in the suit. Executing on a judgment is different from collecting the commission or coercing payment. Under this interpretation the Respondents have not been shown to violate Section 475.42(1)(j). A second interpretation would read the clause, ". . . if the same is known to to him to be false, void, or not authorized to be placed of record, or not executed in the form entitling it to be recorded, or the execution of recording thereof has not been authorized by the owner of the property. . ." as the first of two criteria to be met to establish a violation. The second criteria would consist of proof that the encumberance was recorded maliciously or for the purpose of collecting a commission, or to coerce payment of money to the broker or salesman, or for any unlawful purpose. Again the facts do not show there was knowledge by the Respondents of the falsity, or impropriety of the notice of lis pendens, as stated above. Again the facts show that the lis pendens was filed in conjunction with a law suit pending between the Respondent and the property owner, and that the court before which the action was pending refused to remove it. The file of the notice by Respondent's counsel was a legitimate method of perfecting the Respondent's claim should they prevail and obtain judgment. The facts do not indicate that the filing of the notice was malicious, coercive or for the purpose of collecting a commission. Under either interpretation, Respondents did not violate the statute. COUNT II The Respondents are charged in Count II with violation of Section 475.25(1)(d), Florida Statutes, which provides that the registration of a registrant may be suspended for up to two years for violation of a lawful order of the Commission. Clearly, the facts reveal that the Respondents had a substantial interest involved in the litigation with Perrin. The order, of the Florida Real Estate Commission to remove the notice of lis pendens substantially affected their rights in this litigation. Therefore, any final order directing Kay to remove the notice of lis pendens should have issued after an opportunity for hearing pursuant to Section 120.57, Florida Statutes. The evidence reveals that the Florida Real Estate Commission did not notice a hearing under Section 120.57, and therefore its order cannot be "lawful." The provisions of Section 475.25(1)(d) require that registrants not violate lawful orders. The Respondents have not violated Section 475.25(1)(d), Florida Statutes, by not removing the notice of lis pendens as directed by the order of the Florida Real Estate Commission.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that no action be taken against the Respondent, Sam Kaye and Sam Kaye, Inc. DONE and ORDERED this 23rd day of September 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce I. Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 William E. Boyes, Esquire Cone, Owen, Wagner, Nugent, Johnson & McKeown, P.A. Post Office Box 3466 West Palm Beach, Florida 33402
