Findings Of Fact At all times material to the charges, respondent was a licensed real estate salesman, on inactive status, holding license no. 0330793., and residing in Lake Worth, Florida. In early October, 1983, Jack Barlage entered the offices of Colony Real Estate in Lake Worth, Florida. He was a builder and looking for acreage to purchase. Joyce Adams, a real estate salesman with Colony Real Estate, met with him and, two or three days later, showed him a 5.207 acre tract of land in sunny Urban Meadows, an unrecorded subdivision located west of Loxahatchee, Florida. He expressed an interest in the property; she told him that the owner, Richard Moore, might be willing to sell it. A day or two later, Mr. Barlage called Ms. Adams and asked if she would call owner Moore and obtain a purchase price. She responded that she would not get a commission from selling the property and that he should deal with "Leon," who would be able to contact Mr. Moore, the owner. A day or two later, Ms. Adams introduced Mr. Barlage to "Leon," who was Leon Dennis, respondent's husband--the original developer of Sunny Urban Meadows. This meeting took place at a nearby coffee shop in Royal Palm Beach, called Sandy's. John Adams, Ms. Adams' husband and a real estate salesman, was also present. Respondent did not attend this meeting and there is no evidence that she was, at this point in time, involved in the transaction. This coffee shop meeting was Ms. Adams' last contact with Mr. Barlage, and she had no further involvement in this real estate transaction. A contract for "purchase and sale" of the Sunny Urban Meadows tract was prepared at this meeting and signed by Mr. Barlage, the prospective purchaser. Leon Dennis, respondent's husband, retrieved the form "purchase and sale" contract from his car, returned to the coffee shop, and completed it in the presence of the others. He filled in the terms, including a $28,000 purchase price. He arrived at this figure based on her knowledge of current land values in the area. The form "Brokerage Fee" provision on the bottom of the contract, however, was not filled in; no sales commission was indicated and no broker identified. Mr. Dennis told purchaser Barlage that he would have the contract presented to owner Moore. At that time, Mr. Barlage had not yet had any contacts with respondent, Mr. Dennis's wife. Mr. Dennis, with the help of a relative who was a close friend of Mr. Moore's, then had the contract delivered to Mr. Moore, in Punta Gorda, Florida. Approximately a week earlier, respondent had telephoned Mr. Moore, asking if he wanted to sell the subject property. At that time, a sales commission was not discussed; neither did she represent that she was a licensed real estate salesman or broker. But when the original contract was subsequently delivered to him by Mr. Moore's relative, the "Brokerage Fee" provision had been completed, providing for payment of ten percent of the gross price or $2,800 to Pat Dennis, the respondent. Her name was hand printed above the line labeled, "Name of Broker." Upon receiving the contract and discovering the sales commission, Mr. Moore telephoned respondent and told her that he would not pay a ten percent commission--he said he would agree only to a six percent commission, to be split between her and his own real estate brokerage firm. He also told her that if those terms were not acceptable to her, he "would go ahead and do it without her and give-her her money after the deal was done." (TR-21) Mr. Moore then arranged to meet directly with Mr. Barlage, the prospective purchaser. On October 9, 1983, Mr. Barlage drove to Punta Gorda and met Mr. Moore in a hospital parking lot to finalize the contract. Mr. Moore, noting the "Brokerage Fee" provision, said "Who are these people?" and "Well, I'll take care of them," or words to that effect, (TR-10). He then drew a line crossing out the "Brokerage Fee" provision and initialed it. He then told Mr. Barlage he wanted to do a credit check; one or two days later, he called Mr. Barlage and told him he was going to accept the contract. It was at that time, on or about October 9, 1983, that Mr. Moore executed the contract as seller. For reasons not material, the contract of sale was never carried out by the parties. Mr. Barlage unilaterally cancelled the contract. When Mr. Moore called him to inquire about the $500 earnest money deposit, which the contract had indicated was held by "Stewart Title," Mr. Moore learned that a deposit had not been received by Stewart Title; in fact, Mr. Barlage had made no deposit at all. There is conflicting testimony as to whether respondent ever communicated with Mr. Moore concerning this real estate transaction. Respondent denies any direct involvement. Her denial is rejected and the testimony of Mr. Moore, who had no discernible bias or motive to falsify, is accepted as persuasive.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's license as a Florida real estate salesman be revoked for violating Section 475.25(1)(a) and (b) and 475.42(1)(b), Florida Statutes, in the manner described above. DONE and ORDERED this 25th day of February, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1985. COPIES FURNISHED: Fred Langford, Esquire Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Richard McClain, Esquire 6167 Haddon Road West Palm Beach, Florida 33409
Findings Of Fact Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on January 11, 1978, in Cocoa, Florida. The following appearances were entered: Charles E. Felix, Orlando, Florida, for the Plaintiff, Florida Real Estate Commission; and Kenneth A. Studstill, Titusville, Florida, for the Defendants, Thomas L. Pittman and Pittman Real Estate, Inc. The Florida Real Estate Commission issued an Administrative Complaint against the Defendants on August 23, 1977. On September 12, 1977, the Defendants filed an election of rights form which constituted a petition for hearing. In accordance with the provisions of Section 120.57(1)(b)(3), the Commission requested that a hearing officer from the Division of Administrative Hearings be assigned to conduct the hearing. The final hearing was scheduled by notices dated October 19, 1977 and November 2, 1977. At the final hearing the Commission called Gary W. Brandt, a registered real estate salesman, as its only witness. The Defendants called Virginia Laver, a former employee of Defendant Pittman Real Estate, Inc., and the Defendant Thomas L. Pittman. Hearing Officer's Exhibits 1-3, and Petitioner's Exhibits 1 and 2 were offered into evidence and were received. There were conflicts in the testimony of certain of the witnesses. In resolving these conflicts due regard has been given to the credibility of the witnesses as evidenced in part by the demeanor of the witnesses at the hearing, and in part by the extent to which the witnesses' testimony has been corroborated by other evidence.
Findings Of Fact Prior to the commencement of hearing, the parties entered into a stipulation of fact, a copy of which is attached and constitutes the findings of fact in this hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission take action to cause Holdridge's name to be placed on the list of active brokers and to have current registration papers issued. DONE and ORDERED this 2nd day of May, 1977, in Tallahassee, Florida. STEPHEN F. DEAN 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 2nd day of May, 1977. COPIES FURNISHED: Frederick H. Wilsen, Esquire 2699 Lee Road Winter Park, Florida 32789 Michael E. Crane, Esquire 521 Landmark Building Naples, Florida 33940 =================================================================
Findings Of Fact This cause came on for consideration based upon the Administrative Complaint filed by the Petitioner, Florida Real Estate Commission vs. Cecil V. Cancer t/a Cancer Realty, Respondent. The Respondent has opposed the Administrative Complaint and demanded a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The Florida Real Estate Commission is an agency of the State of Florida which has as its primary function the regulation of certain licensees who hold various registrations with the Petitioner. The Respondent, Cecil V. Caneer t/a Caneer Realty, holds License No. 0012862, under the authority of the Florida Real Estate Commission. This license entitles the Respondent to act as a real estate broker in the State of Florida. At all times pertinent to the Administrative Complaint, the Respondent has been so licensed. On August 12, 1974, the Respondent entered into a management agreement with James Thomas Quinn and his wife, Phyllis J. Quinn, to manage certain property in Jacksonville, Duval County, Florida, located at 5639 Minocqua Street. The terms and conditions of that management agreement may be found in the Petitioner's Exhibit No. 3 admitted into evidence. This management agreement entitled the Respondent to receive certain brokerage fees for his services to the Quinns in leasing, collecting rents, maintaining the property, entering into service contracts, effecting certain repairs and making disbursements from the owners' proceeds and with a portion of the rents to be deposited for purposes of satisfying the mortgage payments owed on the property. In addition, the Respondent was responsible for making periodic itemized statements of receipts, expenses, charges and accruals, and to remit the net proceeds to the owners. The Quinns, through the management agreement, agreed to pay the various percentages set forth in the brokerage fee arrangement and to assume the full responsibility for the payment of expenses and obligations incurred in connection with the exercise of the Respondent's duties under the management agreement. The owners left the State of Florida at a time when the management agreement was still in force and effect. In November and December, 1976, the property was in a state of disarray, and a number of items needed to be repaired. Under the terms and conditions of the management agreement and with the written permission of Mrs. Quinn, dated December 20, 1976, the Respondent made a number of repairs to the property. The letter spoken of may be found as the Petitioner's Exhibit No. 4 admitted into evidence. The Respondent also made two mortgage payments in behalf of the Quinns for the months of December, 1976, and January, 1977. An itemized statement of the monies expended by the Respondent, less the security deposit of the tenants who were living in the rental property in late 1976, may be found in the Petitioner's Exhibit No. 2 admitted into evidence. The Respondent requested the Quinns to reimburse him for the money that he had paid in making repairs and for the mortgage payments made on the property. The Quinns refused to pay the Respondent, and acting on the advice of his attorney, the Respondent filed a claim of lien against the subject real property at 5639 Minocqua Street, Jacksonville, Duval County, Florida, which is the property of the Quinns. The Claim of Lien may be found as the Petitioner's Exhibit No. 1 admitted into evidence. It sets out that the Respondent spent $220.58 for certain repairs and payments for other repairs, with the total value of materials and labor being $441.79. In fact, the $220.58 was spent for the mortgage payments on the property for the months of December, 1976, and January, 1977. The balance of the $441.79 was for the items of repairs as itemized in Petitioner's Exhibit No. 2, less the security deposit spoken of. At the time the lien was placed, the Respondent was also of the persuasion that the Quinns intended to sell the property. Under these facts as shown, the Petitioner, Florida Real Estate Commission, is convinced that the Respondent has violated certain laws pertaining to his licensure by the Florida Real Estate Commission. Specifically, the Petitioner feels that the act by the Respondent of placing the lien upon the public records of Duval County, Florida, against the property of the Quinns, was a utilization of a document which purports to affect the title of, or encumber, the real property of the Quinns and was for the purpose of collecting a commission or to coerce the payment of monies in violation of Subsection 475.42(1)(j), Florida Statutes. The Petitioner believes that these acts constitute a violation of Subsection 475.25(1)(d), Florida Statutes, and finally, that for these acts the Respondent is guilty of dishonest dealing, in violation of Subsection 475.25(1)(a), Florida Statutes. The lien in question does purport to affect the title of and encumber the real property of the Quinns, and it has been placed by the Respondent, a real estate broker licensed by the Florida Real Estate Commission. It has been placed in the public records of Duval County, Florida. However, it was not placed for the purpose of collecting a commission or to coerce the payment of money to the Respondent. The Respondent was acting under the express authority of the management agreement and letter of instruction of December 20, 1976, from Mrs. Quinn, and pursued his legal remedies by filing the lien, when it was determined that the Quinns did not intend to reimburse him for the authorized expenditures and mortgage payments on the rental property. Likewise, there has been no showing that the Respondent is guilty of dishonest dealings in violation of Subsection 475.25(1)(a), Florida Statutes. When the alleged violation of Subsection 475.42(1)(d) Florida Statutes, failed, the allegation under Subsection 475.25(1)(d) becomes irrelevant, due to the fact that the purpose of Subsection 475.25(1)(d), Florida Statutes, is to implement the penalties found in Section 475.25, Florida Statutes, in the event of any violation of provisions of Chapter 475, Florida Statutes, other than Section 475.25, Florida Statutes violations.
Recommendation It is recommended that the Petitioner, Florida Real Estate Commission, dismiss the Administrative Complaint against the Respondent, Cecil V. Caneer t/a Caneer Realty, and allow the Respondent to go forth without further necessity to answer to those allegations. DONE and ENTERED this 22nd day of November, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Salvatore A. Carpino, Esquire Florida Real Estate Commission Post Office Box 1900 400 West Robinson Street Orlando, Florida 32802 David C. Goodman, Esquire 1387 Cassat Avenue Jacksonville, Florida 32205
The Issue The issues are whether Respondent failed to communicate an appraisal without good cause in violation of Section 475.624(16), Florida Statutes (2001); whether Respondent is guilty of fraud, misrepresentation, concealment, false promise, false pretenses, dishonest conduct, culpable negligence, or breach of trust in any business transaction in violation of Section 475.624(2), Florida Statutes (2001); and, if so, what penalty should be imposed on Respondent's license.
Findings Of Fact Petitioner is the state agency responsible for regulating persons licensed in Florida as real estate appraisers. Respondent is licensed in Florida as a general real estate appraiser pursuant to license number RZ0000252. Petitioner issued the current license to Respondent at 410 Cortez Road West, Suite 405, Bradenton, Florida 34207. On or about October 12, 2002, Respondent met with Ms. Pauline Ney, the sole owner, at the time, of real property that included a single family residence located at 11001 25th Street East, Parrish, Florida (the property). The property is one of several large, estate-type parcels along the Manatee River. Each parcel in the area ranges greatly in size and quality. The property includes a dock and approximately 242 feet of "river frontage" along the back of the property. The property also includes a spring-fed, freshwater pond to the front; a brackish saltwater lagoon to the rear; a tennis court; a semi-private guest suite with a kitchenette, living room, bedroom, and bathroom; and other amenities. Respondent learned at the meeting with Ms. Ney on October 12, 2002, that Ms. Ney intended to sell the property and wanted an appraisal from Respondent in order to determine a market value for the property. Respondent agreed to develop, communicate, and deliver an appraisal of the property. The real estate broker (broker) with whom Ms. Ney intended to list the property was present during part of the meeting between Ms. Ney and Respondent and testified at the hearing. Ms. Ney asked Respondent for an estimated market value of the property. Respondent physically inspected the property and obtained the information needed for an appraisal. Ms. Ney provided Respondent with floor plans and a survey of property and paid Respondent $500. Respondent stated to Ms. Ney that an appraisal would require some time. Respondent explained, "This is a very unique property, and it's going to be hard to find comparables." Ms. Ney pressed Respondent for a "ballpark" figure because Ms. Ney wanted to place the property on the market at the earliest opportunity. Respondent admits he stated, "I would not sell it for less than a million." Respondent testified at the hearing that he verbally appraised the property at a value of $750,000 to $850,000, but further stated that he would not sell the property for less than $1 million. Respondent further testified that he provided a written appraisal to Ms. Ney by e-mail while Ms. Ney was out of town on an extended vacation. Respondent's testimony concerning the alleged oral appraisal of $750,000 to $850,000 on October 12, 2002, and subsequent appraisal by e-mail is neither credible nor persuasive to the trier of fact. The statements Respondent claims he made do not constitute an appraisal within the meaning of the Uniform Standards of Professional Appraisal Practice (USPAP). The statements do not satisfy relevant requirements in Standard 2 Real Property Appraisal, Reporting, page 21, USPAP-2001 (Standard 2). The purported statement that the property is worth $750,000 to $850,000, but that Respondent would not sell the property for less than $1 million is misleading within the meaning of Standard 2. Respondent's statements did not contain sufficient information to enable the intended users to understand the information properly. Finally, the statements by Respondent did not clearly and accurately disclose limiting conditions, including the shared use of water supply with an adjacent property owner, and the impact of those conditions on the value of the property. Respondent never delivered an appraisal to Ms. Ney, either oral or written. Respondent failed to communicate an appraisal without good cause in violation of Section 475.624(16), Florida Statutes (2001). Respondent asserts that he provided Ms. Ney with a verbal appraisal on October 12, 2002, and later provided a written appraisal to Ms. Ney by e-mail while Ms. Ney was out of town on an extended vacation. Respondent's failure to provide a written appraisal to Ms. Ney constitutes culpable negligence and a breach of trust in a business transaction in violation of Section 475.624(2), Florida Statutes (2001). The business purpose of the transaction was to obtain a written appraisal suitable for the broker to show potential purchasers of the property and thereby facilitate the sale of the property. It would be credulous to find, as Respondent testified, that Ms. Ney paid Respondent $500 for the verbal statements Respondent provided to Ms. Ney on October 12, 2002. Respondent's testimony demonstrated ample business acumen for him to understand the business purpose for the $500 he received from Ms. Ney. Respondent's failure to provide an appraisal to Ms. Ney caused Ms. Ney to suffer financial harm, including the cost of a second appraisal and the delay in the sale of the property. Ms. Ney subsequently obtained a written appraisal from a second appraiser. The written appraisal valued the property as of November 25, 2002, at $775,000. The appraiser signed the appraisal on January 7, 2003. The written appraisal contains approximately 10 limiting conditions not included in the verbal statements Respondent claims in his testimony that he provided to Ms. Ney on October 12, 2002. Ms. Ney listed the property with the broker sometime in February or March of 2003. The broker listed the property at a listing sale price based on the written appraisal provided by the second appraiser. Ms. Ney eventually completed the sale of the property. Between October 12, 2002, and January 7, 2003, Ms. Ney was unable to sell the property. The property was unusual, and the broker needed an appraisal to establish a listing price. Respondent understood that Ms. Ney wanted to list the property as soon as possible but could not do so without a written appraisal. On several occasions, during November and December of 2002, the broker's assistant attempted to contact Respondent to obtain a written appraisal. Respondent did not respond. Respondent testified unpersuasively that he was unaware that Ms. Ney had not received the appraisal by e-mail or that the broker had tried to contact Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Board enter a Final Order finding that Respondent violated Subsections 475.624(16) and 475.624(2), Florida Statutes (2001); imposing an administrative fine of $2,000; and suspending Respondent's license for 60 days. DONE AND ENTERED this 28th day of January, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 28th day of January, 2004. COPIES FURNISHED: Don Alan Moore Post Office Box 1339 Bradenton, Florida 34206 Alfonso Santana, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801, North Orlando, Florida 32801-1757 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jason Steele, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802, North Orlando, Florida 32801-1772
Findings Of Fact John M. Stroud is a registered real estate saleman holding registration number 0172065 issued the Florida Real Estate Commission. On December 17, 1976, John M. Stroud was arrested for burglary and committed to the custody of the sheriff of Brevard County for the offense of burglary. On December 15, 1976, Stroud had his completed application notarized by R. Jack Simpson. Stroud's application was initially received by the Florida Real Estate Commission on January 5, 1977, and was returned to Stroud because he had not enclosed the fee required. It was resubmitted with the fee and received by the Florida Real Estate Commission on January 14, 1977.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer RECOMMENDS: That the registration of John M. Stroud be revoked. DONE and ENTERED this 9th day of December, 1977 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1977. COPIES FURNISHED: David T. Young, Esquire 1197 So. U.S. Highway 1 P.O. Box 563 Rockledge, Florida 32955 Bruce I. Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
The Issue Whether the Respondent's real estate broker license should be disciplined based upon the alleged violations of Sections 475.25(1)(b),(c),(d)1. and (e), Florida Statutes.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Bernard L. Covington is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0178235 in accordance with Chapter 475, Florida Statutes. The last license was issued as a broker at 4383 U.S. Hwy. 1, Edgewater, Florida 34141. On September 6, 1990, Terra Mar Village's prospectus to sell proprietary leases in mobile home lots was approved by the Florida Department of Business Regulation. Included in said prospectus is a form Contract for Purchase and Installation of a Cooperative Unit and Manufactured Home at Terra Mar Village for use when lot was to be sold in said Village. On July 25, 1992, Respondent, through the actions of his agent, Alvin D. Booten, solicited and obtained a purchase agreement between sellers, Terra Mar Village Association, and buyers, Jack W. Miller and Jacqueline Miller for Lot 132 in Terra Mar Village. Respondent's agent represent that the buyers were purchasing a mobile home lot in fee simple at the Village. In actuality, they were only purchasing a proprietary lease in the lot. Al Booten, an unlicensed agent, was employed by Terra Mar Village, LTD. as a sales representative. In the course of his employment, he promised the Millers a deed to the property. They relied on his representations, and they put down their deposit on the lot. Booten never advised the Millers they were buying into a cooperative association. Respondent failed to use the approved Contract for Purchase agreement form contained in the prospectus approved in September 1990 by the Department in its dealings with the Millers. The Respondent failed to disclose prior to the closing that the buyers were purchasing only a proprietary lease in the lot. On January 14, 1993, the transaction closed with Respondent acting on behalf of Terra Mar Village, LTD. and Terra Mar Village Association, Inc. After closing, the buyers received the Prospectus and title policy. Upon examining their title insurance policy, they learned that they had purchased a proprietary lease, not a fee simple interest in the lot as has been represented to them by Booten. The mobile home park has gone into foreclosure and the ownership interest of the Millers, among others, in their lots have been put in jeopardy. The Millers had relied on the representations of the Respondent as a licensed broker in their decision to purchase a lot in Terra Mar Village. Respondent committed a breach of trust by failing to disclose that the lot being sold was by proprietary lease. On April 1 and May 10, 1993, buyer Reginald B. Randolph gave Respondent's unlicensed agent, Al Booten, two checks totalling $45,000 for the purchase of a mobile home and lot at Terra Mar Village. On May 10, 1993, Respondent closed the transaction without the knowledge or consent of the buyer. However, Respondent failed to have the title to the property recorded. Randolph was misled by the Respondent's agent Booten, who told Randolph and his wife that they could buy a lot on a canal in the Village. When the Randolphs discovered they had been deceived and demanded their money back, the Respondent refused to refund it. They also discovered the money was not being held in escrow. The Randolphs believed Al Booten was a licensed real estate salesperson because he claimed he was selling the lot. There were many problems associated with the park. The source of potable water at the park was not approved and a moratorium was placed on it by Volusia County. Later, Terra Mar Village, LTD. filed for bankruptcy, but it was denied. The Respondent seeks to blame the "recession" and the water problems for the difficulties he encountered with the Millers and Randolphs. However, Respondent collected their downpayments and misappropriated the funds after allowing them to be misled by his agent.
Recommendation Based on the foregoing, it is RECOMMENDED as follows: The Florida Real Estate Commission issue and file a Final Order finding the Respondent guilty of violating Subsections 475.25(1)(b), (d)1 and (e), Florida Statutes, as charged in the Administrative Complaint. The Final Order should further direct that all of Respondent's real estate licenses, registrations, certificates and permits, be suspended for a period of two (2) years and that he pay an administrative fine of $1,000. DONE and ENTERED this 10th day of August, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 10th day of August, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1-14 Respondent's proposals. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Steven W. Johnson, Esquire Florida Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Bernard L. Covington, pro se 1034 Old South Lane Apopka, Florida 32702 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire Acting General Counsel Florida Department of Business and Professional Regulation Division of Real Estate Northwood Centre 1940 N Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues posed for decision herein are whether or not, based on conduct which will be set forth hereinafter in detail, the Respondent is guilty of a course of conduct constituting fraud, misrepresentation, concealment, false promises, etc., in violation of Subsection 475.25(1)(b), Florida Statutes (1979); whether or not Respondent has obtained a real estate license by means of fraud, misrepresentations or concealment, in violation of Subsection 475.25 (1)(m), Florida Statutes (1979); whether or not Respondent has been guilty of fraud, misrepresentation, false promises and false pretenses, in violation of Subsection 475.25(1)(b), Florida Statutes (1979); and whether or not Respondent has been guilty of a crime against the laws of this state involving fraudulent or dishonest dealing, in violation of Subsection 475.25(1)(f), Florida Statutes (1979). 2/
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found. Patricia C. Alters, Respondent herein, is a registered real estate salesperson and has been so registered since approximately February 18, 1980. Respondent has been issued License No. 0330568 by the Petitioner. On November 10, 1979, Respondent made an application for registration as a real estate salesperson to the Florida Real Estate Commission. Question No. 6 of that application required that Respondent report if she had ever been arrested for or charged with the commission of any offense against the laws of any municipality, state or nation. Respondent filed a negative response to question No. 6. (Petitioners Exhibit No. 1.) On June 18, 1979, an arrest warrant was issued in Duval County, Florida, charging Respondent with issuing worthless checks and drafts, in violation of Chapter 832, Florida Statutes (1979). Pursuant to that warrant, Respondent was arrested on June 20, 1979, by the Clay County Sheriff's Department. Respondent was booked and released on her own recognizance. (Petitioner's Exhibit No. 10 and Respondent's Exhibit No. 1.) On May 19, 1980, Respondent was charged with the issuance of a worthless check drawn on or about December 19, 1979, in the amount of $12.71. The check was issued to the J. C. Penney Company, Inc. (Petitioner's Exhibit 4.) Respondent pled guilty to said charge and was adjudged guilty by the court on May 19, 1980, in criminal proceeding No. 80-9979MM in the County Court of Duval County, Florida. She was fined $50.00 plus court costs. (Petitioner's Exhibit No. 5.) On or about October 7, 1978, Respondent leased a residence located in Clay County, Florida, from one Lon E. Brugh. Respondent defaulted on said lease on several occasions failure to timely pay the rent and late charges, namely the rent for the months of June and July, 1979, and for late charges on the months of October, November and December, 1978, and January through July, 1979. Lon E. Brugh filed a civil suit in the County Court in and for Clay County, Florida, and charged that the Respondent had defaulted on the terms of the lease. On November 30, 1979, Respondent was adjudged to be in default of said lease and ordered to pay to Lon E. Brugh the sum of $929.05 plus his (Brugh's) costs of $34.00. Evidence reveals that Respondent issued three (3) checks to Lon E. Brugh during late April and early May of 1979, for payment of rent and late charges for the residence which she leased from Brugh. Evidence also revealed that Respondent immediately instructed her bank to place stop payments on the checks which she had issued to Brugh for rent payments. Respondent contends that she placed stop payments on these checks due to a dispute that she had with Brugh concerning her responsibilities under the lease. Evidence reveals that the checks here involved were either for past due rents or for late charges. (Tr. pp. 62-66.) RESPONDENT'S POSITION AND DEFENSE Initially, Respondent's position is that she was not licensed when the civil suit was filed by Lon E. Brugh or when she entered the lease agreement and therefore the facts surrounding the civil suit and related matters which occurred prior to her licensure should not be considered as a basis for Petitioner to take disciplinary action. Secondly, Respondent countered that she issued all checks, which were the basis for the civil action filed by Brugh while she was hospitalized during April and May of 1979. Respondent contends that Mr. Brugh deposited the three (3) checks before she could make a deposit in her bank to cover the checks inasmuch as she was in the hospital. Respecting the events surrounding Petitioner's allegation that Respondent was arrested, Respondent counters that she thought that she had never been arrested, inasmuch as she was driven to the sheriff's office in Clay County during the early morning hours on June 20, 1979, pursuant to a warrant issued by the Duval County Sheriff's Department. That arrest centered around a worthless check which Respondent issued to Sears. Respondent does not deny that the check was worthless when issued; however, she points out that restitution has been made to Sears. In support of her belief that she had not been arrested, Respondent points to the facts that she did not post bond; was not placed behind bars and was allowed to leave under her own recognizance. In response to that charge, Respondent entered a written plea of not guilty. She therefore considered that she was not arrested. (Petitioner's Exhibit No. 3.) As to the circumstances surrounding the worthless check which Respondent issued to Penney's during December of 1979, Respondent noted that she made restitution for said check; that Penney's returned the monies which she paid them, inasmuch as she did not obtain the merchandise which was in the form of a lay-a-way purchase. Respondent admits to her plea of guilty; however, she testified that she had been issued a $3,500.00 check which was deposited into her account and was returned for non-sufficient funds, which, in turn, caused several of her checks to be returned. Finally, Respondent generally denied all of the allegations involved herein and affirmatively stated that she made restitution for all of the checks which had been returned returned for non-sufficient funds; that she has established a good record of honesty and trustworthiness in the community and is well respected by realtors and other officials involved in the real estate business in the area. (Testimony of Respondent, Ken O'Leary, Sheldon Wardwell, John Drago and Peter Dalton.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent's license as a real estate salesperson be revoked and that the revocation be suspended for a period of forty-five (45) days during which time Respondent shall be afforded an opportunity to re-submit her application to be licensed as a real estate salesperson. It is further RECOMMENDED: That, in the event Respondent re-submits a, new application to be licensed as a real estate salesperson, which truthfully and completely responds to Question 6 of that application, Petitioner consider the character and mitigating evidence offered by Respondent herein. In such case, if Respondent re-submits her application for licensure within the above-referred forty-five (45) day period, it is further RECOMMENDED: That Respondent, after completing the filing of a new application as set forth herein, which otherwise fully satisfies and comports with Petitioner's procedures, be issued a new license, which license shall be placed on a probated status for a term of two (2) years. DONE and RECOMMENDED this 22nd day of June, 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 22 day of June, 1982.
